Scholarly Communication Advisory
Thursday, June 12, 2014
I imagine you’ve read some of the many excellent comments, analyses, and news reports about the Authors Guild v. HathiTrust case. I thought I’d summarize briefly for you if you’ve missed some of it, and also try to clear up one confusion that I’ve seen several times. If you want the “brief” highlights, just read below through the first paragraph of the “Section 108 replacement copies” section. Below that I have various thoughts about the case and what it means, and additional links to commentary.
Briefly, the Second Circuit yesterday [Tuesday June 10] handed HathiTrust a very significant victory. The Authors Guild can now petition for a rehearing or petition for cert. to the Supreme Court, and while the Authors Guild has proven somewhat unpredictable, I feel fairly confident in saying that there is no reason for either the Second Circuit or the Supreme Court to review yesterday’s decision.
The lower court had in October 2012 made five major holdings – two procedural, and three substantive, and all five had benefited HathiTrust. The Second Circuit strongly affirmed four of five of them, and on the fifth, vacated the earlier holding, but not because it was in error but because they thought the plaintiffs would lose on other, more preliminary, grounds.
Associational standing. One, the lower court had held that the Authors Guild and two of the other associational plaintiffs lacked statutory standing to sue. The Second Circuit affirmed that holding.
“Orphan Works” project not ripe. Two, the lower court had held that the “orphan works” program wasn’t “ripe”, since HathiTrust had shut it down. The Second Circuit affirmed that holding.
Searching is fair. Three, the lower court had held that the search and index use of the HathiTrust catalog was a fair use. The Second Circuit affirmed that holding, finding that a search index is a “quintessentially transformative use”, and that “this use is a fair use.” That should put to rest arguments that the Second Circuit, the “copyright circuit”, does not recognize the “transformative purpose” approach that the 9th Circuit and 4th Circuits have applied in search engine cases.
Accessible copies are fair. Four, the lower court had held that the provision of copies to print-disabled was a fair use. The Second Circuit affirmed that holding, although it used different reasoning than the lower court. “[F]air use allows the Libraries to provide full digital access to copyrighted works to their print-disabled patrons.”
The lower court had concluded the disability copies were transformative; the Second Circuit said no, the copies are not transformative because they are being used for the same purpose – reading by someone. Again, the Second Circuit is solidifying that it has the same broad view of “purpose” that other circuits now share. But this is also a useful opinion because the Second Circuit is expressly holding that NON-transformative uses can be fair use. This is important for libraries and educational uses, where our purposes are not always transformative (provision of copies on electronic reserves, for instance).
Section 108 replacement copies may not be challengeable on other grounds. Five, the lower court had held that HathiTrust could provide Section 108-authorized “replacement copies” to member Libraries who owned the book, but whose copy was lost, missing, damaged, etc., and when a copy was not commercially available. Those standards come from Section 108. The lower court had held that this was a fair use, although not a “transformative use”.
The Second Circuit remanded to see whether or not any plaintiffs actually have standing to sue on this issue.
I highlight this holding because I’ve seen it mischaracterized as “remanded to see if there is fair use”, or “overturning fair use”, etc. None of that is correct. There are three paragraphs discussing this holding — much less than any of the other holdings — because the Court basically said that, “[W]e do not believe plaintiffs have standing to bring this claim, and this concern does not present a live controversy for adjudication.” If the case doesn’t settle the lower court will be seeking to see if any of the remaining plaintiffs might have standing. In other words, will the named authors and/or the foreign collecting societies have works that are commercially unavailable, and subject to replacement copies? If they do find standing, then the lower court couldstill find this to be a fair use. In other words, that holding was vacated, but only because the Second Circuit thought the claim was fail on more preliminary grounds (standing).
Frankly, I anticipate that this case will likely settle, because the Authors Guild was primarily bankrolling it, and they are now excluded as an associational plaintiff. In that case, there will be a lower court holding that Section 108 copies are fair use, which was overturned on other grounds. I don’t view that particularly negatively. Especially because Section 108 copies are already so circumscribed (“commercial unavailability”), it’s hard to imagine that this will pose a problem for anyone.
More general notes about copyright
Here’s my general thinking about this case and its broader implications.
First, it’s out of the same court that will be looking at Authors Guild v. Google later this year. There are some meaningful distinctions — Google is commercial, and provides snippets for viewing. On reflection, I’m still pretty confident about Google’s fair use claims here. The court held that a search index is a “quintessentially transformative use”, and that’s precedential for the Google case. Transformative uses mean that Google’s commercial status is much less important than it would be for a nontransformative use. The snippets will be looked at as to whether its a “reasonable” quantity in light of the purpose, and that will be an important question in the Second Circuit, but I think there’s a very good chance that the snippets will be “reasonable”.
Second, the Second Circuit is modifying its fair use analysis in a few ways, all of which are ultimately helpful to libraries.
- The first factor: “Transformativeness” now clearly includes search engine indexing. Earlier cases certainly supported this strong case, and so did strong cases in other Circuits (AV v. iParadigm in the 4th Circuit; Perfect 10 and Amazon.com in the 9th Circuit). But now the Second Circuit is on record as saying indexing is “quintessentially transformative”. Given the strong value placed in the Second Circuit and all other Circuits on transformative uses, this doesn’t get any better.
- The first factor is not just about “transformativeness”, and libraries and educational institutions rely on the “nonprofit educational” purpose. The Court strongly endorsed that the first factor is not just about transformativeness, focusing on the purpose of providing accessible copies for print-disabled users.
- The second and third factors, nature of the work and quantity taken, did not offer any big new revelations, but both helpfully solidified that with these sorts of uses, taking the entire work and taking fictional/creative works are okay.
- The fourth factor, “effect of the use on the market”, was narrowed in a way that I think will be quite helpful for libraries. The one piece of language that I did not like in this case was the Court’s citation to Harper & Row’s description of this factor as the most important of the four factors. However, the Court took a very narrow reading on what that means, finding that this factor counts only harms that result from the secondary usesubstituting for an original use. “A fair use must not excessively damage the market for the original by providing the public with a substitute for that original work.” This approach really takes a big hit at the principle that American Geophysical Union is often cited for, which is that lost licensing revenue counts — because under the HathiTrust approach, lost licensing revenue for a transformative use will certainly not count. While the Second Circuit has been moving in this direction for a while (in my view), this is a strong and clear statement of that view, and will be very helpful to library and educational users. The unfortunate citation to Harper & Row does not, I think, hurt us much, except insofar as it might give some indication of how the Court is thinking for future cases (like Google Books). But I tend to think it was just more of a quick throw-away citation than any considered reliance, because that point is made just once, and almost in passing.
Three, the Court made short work of two of the Authors Guild’s arguments:
- The Court dismissed the Authors Guild’s claimed concerns about “security” pointing out that the system was very secure.
- The Court dismissed the Authors Guild’s incredibly silly argument that Section 108 obviated Section 107, by dropping a footnote and noting that, on its face, Section 108 includes a savings clause.
All in all, I’m very pleased. This was a big win, in a big court, and it will having lasting effects on the law of search engines, transformative uses, non-transformative uses, disability rights, and the “market” factor. A great day for libraries.
I’m including below some additional media links, if you just can’t get enough of the cheering from the library/educational quarter.
- American Library Association, ALA Applauds Second Circuit’s Affirmation of Fair Use - http://www.districtdispatch.org/2014/06/ala-applauds-second-circuit-affirmation-fair-use/
- Pam Samuelson, Why Authors Win Even if the Authors Guild Lost, https://www.linkedin.com/today/post/article/20140610212022-49502820-why-authors-win-even-if-authors-guild-lost
- Association for Research Libraries, Policy Notes – Second Circuit Affirms Fair Use in Authors Guild v. HathiTrust, http://policynotes.arl.org/post/88390908147/second-circuit-affirms-fair-use-in-authors-guild-v
- James Grimmelmann, Google Books Round 86: Libraries Win Yet Again,http://laboratorium.net/archive/2014/06/10/google_books_round_86_libraries_win_yet_again
- Kevin Smith, http://blogs.library.duke.edu/scholcomm/2014/06/11/a-win-oddly/
- Authors Guild, Narrow Fair Use Ruling Permits Limited Library Uses, Shoots Down Replacement - http://www.authorsguild.org/advocacy/narrow-fair-use-ruling-permits-limited-library-uses-shoots-down-replacement/ (I would read this with a grain of salt)
- HathiTrust, Authors Guild Lawsuit Appeal Ruling http://www.hathitrust.org/authors_guild_lawsuit_appeal_ruling
- More press, accumulated by HathiTrust - http://www.hathitrust.org/around_the_web