Friday, June 13, 2014

OpenStack 06/14/2014 (a.m.)

  • Tags: Google-Books, copyright, fair-use, litigation, Authors-Guild

    • The fair use doctrine permits the unauthorized digitization of copyrighted works in order to create a full-text searchable database, the U.S. Court of Appeals for the Second Circuit ruled June 10.

      Affirming summary judgment in favor of a consortium of university libraries, the court also ruled that the fair use doctrine permits the unauthorized conversion of those works into accessible formats for use by persons with disabilities, such as the blind.

    • The dispute is connected to the long-running conflict between Google Inc. and various authors of books that Google included in a mass digitization program. In 2004, Google began soliciting the participation of publishers in its Google Print for Publishers service, part of what was then called the Google Print project, aimed at making information available for free over the Internet.

      Subsequently, Google announced a new project, Google Print for Libraries. In 2005, Google Print was renamed Google Book Search and it is now known simply as Google Books. Under this program, Google made arrangements with several of the world's largest libraries to digitize the entire contents of their collections to create an online full-text searchable database.

      The announcement of this program triggered a copyright infringement action by the Authors Guild that continues to this day.

    • Turning to the fair use question, the court first concluded that the full-text search function of the Hathitrust Digital Library was a “quintessentially transformative use,” and thus constituted fair use. The court said:

      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. Indeed, we can discern little or no resemblance between the original text and the results of the HDL full-text search.

      There is no evidence that the Authors write with the purpose of enabling text searches of their books. Consequently, the full-text search function does not “supersede[ ] the objects [or purposes] of the original creation.”

      Turning to the fourth fair use factor—whether the use functions as a substitute for the original work—the court rejected the argument that such use represents lost sales to the extent that it prevents the future development of a market for licensing copies of works to be used in full-text searches.

      However, the court emphasized that the search function “does not serve as a substitute for the books that are being searched.”

    • Part of the deal between Google and the libraries included an offer by Google to hand over to the libraries their own copies of the digitized versions of their collections.

      In 2011, a group of those libraries announced the establishment of a new service, called the HathiTrust digital library, to which the libraries would contribute their digitized collections. This database of copies is to be made available for full-text searching and preservation activities. Additionally, it is intended to offer free access to works to individuals who have “print disabilities.”

      For works under copyright protection, the search function would return only a list of page numbers that a search term appeared on and the frequency of such appearance.

    • The court also rejected the argument that the database represented a threat of a security breach that could result in the full text of all the books becoming available for anyone to access. The court concluded that Hathitrust's assertions of its security measures were unrebutted.

      Thus, the full-text search function was found to be protected as fair use.

    • The court also concluded that allowing those with print disabilities access to the full texts of the works collected in the Hathitrust database was protected as fair use. Support for this conclusion came from the legislative history of the Copyright Act's fair use provision, 17 U.S.C. §107.

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