Fair use of books in institutes of higher education

In this case plaintiffs, consisting of individuals and associational organizations, assert claims for copyright infringement for the alleged unauthorized reproduction and distribution of books owned by the Universities. Defendants have entered into agreements with Google, Inc. (“Google”), that allow Google to create digital copies of works in the Universities’ libraries in exchange for which Google provides digital copies to defendants (the “Mass Digitization Project” or “MDP”).

The HathiTrust partnership is in the process of creating “a shared digital repository that already contains almost 10 million digital volumes, approximately 73% of which are protected by copyright.” After digitization, Google retains a copy of the digital book that is available through Google Books, an online system through which Google users can search the content and view “snippets” of the books.

Google also provides a digital copy of each scanned work to the Universities, which includes scanned image files of the pages and a text file from the printed work. According to plaintiffs, this process effectively creates two reproductions of the original. After Google provides the Universities with digital copies of their works, the Universities then “contribute” these digital copies to the HathiTrust Digital Library (“HDL”). The complaint alleges that in total, twelve unauthorized digital copies are created during this digitization process.

For works with known authors, defendants use the works within the HDL in three ways: (1) full-text searches; (2) preservation; and (3) access for people with certified print disabilities. The full-text search capabilities allow users to search for a particular term across all the works within the HDL. For works that are not in the public domain or for which the copyright owner has not authorized use, the full-text search indicates only the page numbers on which a particular term is found and the number of times the term appears on each page.

Since the digital texts in the HDL became available, print-disabled students have had full access to the materials through a secure system intended solely for students with certified disabilities. Many of these works have tables of contents, which allow print-disabled students to navigate to relevant sections with a screen reader just as a sighted person would use the table of contents to flip to a relevant portion. In other words, academic participation by print-disabled students has been revolutionized by the HDL.

Four of the HathiTrust universities (all except Indiana university) have also agreed to participate in the OWP, an initiative to “identify and make available to university students, faculty and library patrons full copies of so-called ‘orphan works’—works that are protected by copyright but whose rights holders theoretically cannot be located by procedures established by the HathiTrust.”

The original process to determine which works would be included as orphan works (“Orphan Works”) involved a decision as to whether a work was commercially available for sale, and if not, an attempt to contact the copyright holder. If that attempt failed, then HathiTrust would list the bibliographical information for the work on the HathiTrust Orphan Candidates webpage for ninety days, after which time the work would have become available for “Full view” on HathiTrust to UM students, professors, and other authenticated users and visitors to libraries at UM’s campuses.

The use of digital copies to facilitate access for print-disabled persons is also transformative. Print-disabled individuals are not considered to be a significant market or potential market to publishers and authors. As a result, the provision of access for them was not the intended use of the original work (enjoyment and use by sighted persons) and this use is transformative. Even if it were not, “making a copy of a copyrighted work for the convenience of a blind person is expressly identified by the House Committee Report as an example of a fair use, with no suggestion that anything more than a purpose to entertain or to inform need motivate the copying.”

Here, entire copies were necessary to fulfill defendants’ purposes of facilitation of searches and access for print-disabled individuals. However, the maintenance of an electronic copy was necessary to provide access for print-disabled individuals. Defendants offer substantial evidence that it would be prohibitively expensive to develop a market to license the use of works for search purposes, access for print-disabled individuals, or preservation purposes. The provision of access for print-disabled individuals likewise does not significantly impact a market.

The enhanced search capabilities that reveal no in-copyright material, the protection of defendants’ fragile books, and, perhaps most importantly, the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers in the ways imagined by the ADA protect the copies made by defendants as fair use to the extent that plaintiffs have established a prima facie case of infringement.

Defendants’ and defendant intervenors’ motions for summary judgment are granted: their participation in the MDP and the present application of the HDL are protected under fair use.