Authors Hold No Veto Over HathiTrust's Mass Digitization of Books

Quote of the Day

"I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA." - Hon.Harold Baer, Jr

On Wednesday, a federal district judge held that the mass digitization of books and other printed material by university libraries, funded by Google, was a fair use. The decision was a blow for The Authors Guild, which brought the lawsuit.  At the heart of the litigation was, as Publishers Weekly described it, "a digitization collective of research libraries . . . built with millions of “unauthorized” scans created by Google."

What the HathiTrust litigation makes clear is that the struggle over copyright is sometimes complicated, but not in this instance. As the music business learned (or should have learned), suing moms and groups of students for sharing music files does not endear you to the general public. Likewise, the prospect of denying library patrons with print disabilities access to books and other print materials, didn't go over big with Judge Harold Baer, Jr.

What this Case Teaches Us

• Fair use is not a mathematical formula
• When suing, keep in mind the "clear" purpose of copyright
• Copyright may be called a "monopoly," but private reward must be balanced against the public good
• In addition to a fondness for widows and orphans (think copyright termination rights), judges are sympathetic to library patrons with print disabilities.

In HathiTrust, the court categorized copyright as an impediment of progress and, thus cast the venerable Authors Guild as the real villain. The moral?  Pick your defendants carefully.

Significant power still resides in the hands of publishers.  So, don't count the Guild out.  While they may be zealous to a fault, this defeat does not demolish the notion that the avocation of  authorship needs protecting. As Judge Baer pointed out, the issue here was over-protection, i.e., authors stood to gain very little if the public was deprived of this resource. 

What that means, of course, is that the court and the Guild have different notions of what is in the public's best interests.   The conflict between copyright protection and free access is a  perennial bone of contention.  Here the desired outcome was the progress of science and useful arts -- not protecting creators against copying.   Has Judge Baer slipped a noose around the neck of authors by allowing this mass digitization?  

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Legal Soundtrack

If Judge Baers' decision were to have a soundtrack, I'd propose 2 Live Crew's Roy Orbison parody, "Oh, Hairy Woman" and the Best of the Grateful Dead,.  Why?  Both artists were the subject of seminal fair use cases relied upon by the court.     

Here are the two cases the court relied upon:  

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 569 (1994). (2 Live Crew recorded and sold a commercial parody (i.e., a "hood version") of Roy Orbison's classic (i.e., "white-bread original") Oh, Pretty Woman.  Court allowed it under fair use doctrine, stating the  "song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies.")
 

Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 609 (2d Cir. 2006) (affirming district court’s conclusion that the use of entire copyrighted concert posters in a book “to document and represent the actual occurrence” of the concerts was different from the “dual purposes of artistic expression and promotion of the original use”).


Resources

Fair Use in a Nutshell by Lloyd J. Jassin