Google Books Round 86: Libraries Win Yet Again

The Second Circuit’s decision in Authors Guild v. HathiTrust is out. This, as a reminder, is the offshoot of the Google Books litigation in which the Authors Guild inexplicably sued Google’s library partners. The trial judge, Harold Baer, held for the libraries in 2012 in a positively exuberant opinion:

I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP [Mass Digitization Project] 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.

The Second Circuit’s opinion drops the grand rhetoric, but otherwise the bottom line is basically the same: mass digitization to make a search engine is fair use, and so is giving digital copies to the print-disabled. The opinion on appeal is sober, conservative, and to the point; it is the work of a court that does not think this is a hard case.

On full-text search:

  • Factor 1: “[T]he creation of a full‐text searchable database is a quintessentially transformative use” because it serves a “new and different function.” Authors write to be read, not to be searched.
  • Factor 2: The nature of the copyrighted work fades into irrelevance for transformative uses.
  • Factor 3: Since full-text search requires copying full books, the copying isn’t excessive in light of the use. True, HathiTrust makes four copies of each book, two live and two in tape backup, but those are appropriate precautions against Internet outages and natural disasters. (It’s nice to see a court recognize that strict copy-counting is a fool’s errand in light of modern IT; better to focus, as the court here does, on the uses those copies enable.)
  • Factor 4: “[T]he full‐text‐search use poses no harm to any existing or potential traditional market … .” Book reviews do not substitute for sales of a book, even when they convince readers not to buy the book; so here. There is no lost licensing market because full-text search is not a substitute for books in the first place. (No citation to American Geophysical!) And while the Authors Guild says there’s a risk of a security breach, saying so doesn’t make it so: the harm from a hypothetical breach is pure speculation.

On print-disabled access:

  • Factor 1: Providing access to the print-disabled is not transformative: “By making copyrighted works available in formats accessible to the disabled, the HDL [HathiTrust Digital Library] enables a larger audience to read those works, but the underlying purpose of the HDL’s use is the same as the author’s original purpose.” But providing such access is still a favored use: there is a national policy of promoting access, reflected in the Chafee Amendment and recognized by the Supreme Court.
  • Factor 2: Irrelevant again, even though the use isn’t transformative. (Factor 2 never matters for published expressive works.)
  • Factor 3: The scanned images—and not just the OCR’ed text—are useful to print-disabled readers. Some readers are print-disabled because they need greater magnification or stronger color contrast than paper provides, others because they can’t turn pages. Scanned images help them both. (It’s nice to see a court take the diversity of disabilities seriously; Dan Goldstein’s advocacy here clearly helped.)
  • Factor 4: There is no market for selling books to the print-disabled; only a small percentage of books are published in accessible formats and even for those authors typically forego their royalties. (The Authors Guild’s war against text to speech has come back to bite it.)

These holdings merely affirm the District Court’s conclusions, but they are still a big deal. The Second Circuit’s decisions are binding precedent in New York, the nation’s publishing capital, and are highly influential beyond. Five judges have now upheld the legality of scanning books to make a search engine; none has disagreed.

The other major points in the opinion all consist of declining to decide:

  • The Authors Guild lacks standing to sue on behalf of its members. The case continues, thanks to the international organizations and the individual plaintiffs, but ouch. By pressing the Google Books cases, the Authors Guild has undercut its ability to take legal action on behalf of “authors” in general. In a real sense, it is legally weaker than when the case started.
  • Preservation uses aren’t ripe for consideration because the court has already held that hanging on to four copies is fully justified by the operation demands of providing full-text search. That only leaves printing replacement copies for lost or damaged ones when they’re unavailable for purchase at a fair price, but since it’s not clear whether or when that would happen—let alone whether it would happen to one of the remaining plaintiffs’ books—the issue isn’t ripe to decide.
  • Since Michigan has suspended the orphan works project (showing orphaned works to non-disabled patrons) and has no plans to reinstate it in the same form, those issues aren’t ripe either. The libraries dodged a bullet here; if they want to try again, it will be on terms of their choosing.

The opinion is a green light for library search engine digitization. It is an even greener light for making books and other works accessible to the disabled. And there was great rejoicing at the DPLA and the Internet Archive. There is not very much new in the opinion, but its very lack of novelty sends a strong signal that these uses are now clearly established.

What next? The Authors Guild could ask for rehearing, or petition for certiorari. I personally don’t like those odds, but I have never really understood the Guild’s decision-making process around this case, so who knows? The opinion sends a strong signal that the case against Google, also on appeal to the Second Circuit, is also likely to go in favor of scanning. At the very least, if the two cases are to be distinguished, it will have to be on narrow grounds: that Google makes commercial uses or shows snippets. Even that would provide clear guidance for digitizers. The holding may also cast a shadow on other search, education, and access cases, for example the Georgia State e-reserves case.