Last week, the Second Circuit issued its decision in the closely watched Authors Guild, Inc. et al. v. HathiTrust et al. copyright infringement case.  At issue was whether the use of copyrighted material in the HathiTrust Digital Library (“HDL”)—a text-searchable digital collection of books created from hard copies provided by various universities and scanned by Google without permission of the copyright owners—is protected against the plaintiff-authors’ claims of copyright infringement under the doctrine of “fair use.”  Farella submitted an amicus brief in support of HathiTrust on behalf of the Electronic Frontier Foundation, Public Knowledge, and the Center for Democracy & Technology.

The Second Circuit affirmed the district court’s decision that the HDL’s use of the copyrighted works for full-text search constitutes a “fair use.”  The Court first determined that the HDL’s creation of a full-text searchable database from hard copy books is a “quintessentially transformative use,” because “the result of a word search is different in purpose, character, expression, meaning, and message from the page (and the book) from which it is drawn.”  Thus, the HDL “adds to the original something new with a different purpose and a different character.”  The Court noted that the HDL only displays the number of times a search term appears on a particular page of a book, and does not allow users to view any portion of the books they are searching.  The Court rejected the authors’ arguments that the use was not “fair” because every copy employed by the HDL in generating full-text searches represents a lost opportunity to license the book for search, reasoning that the “market harm” factor of the fair use analysis requires that the new use serve as a substitute for the original, and search is a new use that clearly does not. 

The Court also affirmed the district court’s ruling that fair use allows the libraries to provide the works in formats accessible to the print-disabled, but declined to address the issue of whether the HDL’s preservation of the books in digital format constitutes a fair use—citing lack of evidence, standing, and ripeness—and remanded the issue back to the district court.

The decision represents an important win for technology innovators, recognizing that full-text searching constitutes fair use and setting precedent that may pave the way for other new digital age uses of copyrighted works to be considered fair use.