This lawsuit stems from the Google Book Project, an ambitious program launched by Google in 2004 to digitize the library collections of the University of Michigan, Harvard, Stanford, the University of Oxford and the New York Public Library and make the collections available for searching online. In 2008, a group of universities established HathiTrust as a repository to combine, archive and share their digital libraries, and make the collection available to the public. At the time of the commencement of suit, the repository reportedly contained 10 million volumes. The Authors’ Guild, an authors’ trade association, and other authors’ groups sued HathiTrust for copyright infringement and swiftly moved for a judgment on the pleadings that HathiTrust could not rely on the fair use defense to the claim of copyright infringement.

First the Court addressed the issue whether the fair use defense is available to library institutions, or whether such institutions are limited to the separate defense to infringement found in Section 108 of the Copyright Act and known as the “library exception.” The court concluded that “fair use does not undermine Section 108, but rather supplements it.” The court then addressed the four fair use factors: purpose and character of the use; nature of the copyrighted work; amount and substantiality of the portion taken in relation to the copyrighted work as a whole; and the effect on the market for or value of the copyrighted works. The court found:

1. Purpose and character of the use. The court found that the use that HathiTrust is making of the works is transformative because it serves an “entirely different purpose than the original works.” The purposed is “superior search capabilities rather than actual access to copyrighted material.”

2. Nature of the copyrighted work; amount and substantiality of the portion used. The second and third factors were not considered important, though the court rejected the plaintiffs’ contention that the uses could not be fair because they made use of the entire works at issue.

3. Market effect.  The court found that this factor weighed in favor of fair use for a number of reasons. The plaintiffs could not identify any specific quantifiable harm to the market to exploit their works, or any documents relating to such harm. The court noted that HathiTrust has implemented security measures in place to prevent wholesale infringing copying. Finally, the transformative nature of the use undercut any actionable market harm, as a copyright holder cannot preempt a transformative market.

Balancing all the factors, the court found the use fair.  The case has been appealed.  A more detailed discussion of the Google Book project can be found in my paper, “Fair of Foul? Mass Digitization and the Fair Use Doctrine,” submitted in connection with the AIPLA’s 2012 Spring Meeting and available at https://www.shadesofgraylaw.com/wp-content/uploads/2013/04/AIPLA-Paper-2012.pdf