A Federal judge has found in favor of defendant HathiTrust’s (HT) request for summary judgment on Fair Use grounds against the Authors Guild (AG), delivering a victory for those seeking new uses for digitized material. The AG had filed suit against HathiTrust and several public universities alleging widespread copyright infringement through Hathi’s mass digitization project (MDP) with Google.
Judge Baer ruled that the MDP was transformative; the uses made of the digital copies for search, analysis, and facilitating access for the reading disabled all clearly fell within Fair Use. In his ruling, which eliminates the need for a jury trial, Baer’s language was emphatic: “Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP … “.
Although the AG could appeal the HT ruling, PW contributor and legal scholar James Grimmelmann notes that the “opinion makes the case seem so lopsided that it makes the appeal into an uphill battle.” Judge Baer clearly felt that some of AG’s assertions – e.g., proclaiming that Section 108 worked precisely opposite the way it clearly states it works with Fair Use, were frivolous. Legal fees are routinely assessed against the losing party in copyright cases, and the AG should offer not to appeal the case in exchange for the defendants agreeing not to seek attorneys’ fees. Whether defendants would accept such a trade given the low odds of a successful appeal is open to question.
The Court’s straightforward and clean ruling provides the AG with very little room to maneuver in its continuing case against Google, which is currently stayed on a procedural issue at the Appeals Court. Notably, Judge Baer found that the AG, as an authors association, lacked the ability to represent its members’ individual copyright claims in AG v. HathiTrust. This suggests that only class action certification, which now must be upheld at Appeals, would permit it to have a compelling footprint in its case before Judge Chin.
More fatally, HT’s definitive fair use ruling makes a successful outcome in the AG’s action against Google doubtful. Google is a commercial organization, not a not-for-profit university, but its use of the mass digitized corpus of library books is similarly as transformative as Hathi’s. In conjunction with the deeply sad loss of one of the primary counsel for the AG, Joanne Zack, this might be a good opportunity for the AG to assess its chances in Chin’s court. With the AAP obviously finding room to settle their separate case against Google, and with authors’ claims against both Google and now the publishers over digital rights without any vehicle for immediate remedy, settlement provides benefits that continuing a lengthy legal procedure would not.
There is a notable difference in Google’s use of the MDP and Hathi’s which could be pivotal in discussions between Google and the AG. For books which are not known to be public domain, HT’s search engine only displays bibliographic information, whereas Google displays “snippets” of texts from within the book. The number of these snippets is limited and algorithmically controlled, and snippets are not displayed against reference works, cookbooks, poetry, and other materials where they might materially harm the commercial market for the source books. Further, Google’s settlement with publishers permits publishers to display a greater portion of each book they claim in the library project database – books which might also conceivably be claimed by authors. This “leakage” of text to users may be a lever that the AG can pull to achieve some compensation for its authors, and procedural clarity with Google.
Judge Chin has clearly indicated that the two factors: the digitization of the books on one hand, and the use of snippets on the other, are distinct in his framing of the issues. In his opinion granting the AG class certification – now on Appeal – Chin notes, “Whether Google’s actions constitute an infringement of these copyright interests and whether Google’s use of “snippets” of these works constitutes “fair use” are “common questions” capable of class-wide resolution.”
This distinction is not one where universities and libraries are likely to find welcome solace. Although Hathi chose not to display text from these books, many copyright specialists would argue that displaying snippets is equally as fair use as the display of thumbnails derived from images indexed on the open web. Whether the distinction associated with snippets, and the matter of the authors’ control over the use of the texts in the library corpus, become the foundation of a new settlement are matters that will necessarily become clear with time.