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March 14: Copying for archives and libraries as fair use

Guest:  Paul Courant Links to an external site.

This week's cases all involve entities that create libraries or archives; in each case these entities reproduce and make available copyrighted literary works, to varying degrees, without authorization from the copyright holders.  These cases are born of emergent technologies that enable swift and accurate (enough) digitization at scale.  Please pay attention to both how the courts decide whether the uses are transformative and how that affects the fair use analysis.  

Please read the following edited cases:

Authors Guild v Hathitrust and Authors Guild v Google

  • In 2005, when the University of Michigan, Stanford, Oxford, the New York Public Library, and Harvard announced that they had contracted with Google to digitize their libraries so that the libraries (and Google) would possess digitized versions of millions of works in their collections, the broad consensus of publishers, authors, copyright pundits, and the general public was that such an arrangement was unequivocally copyright infringement.  (In the early 2000s, the idea that a commercial entity--or even a noncommercial entity--could copy millions of clearly copyrighted works without authorization and and against the wishes of publishers and authors was quickly labeled as unmitigated "theft" and "piracy".)  Threats of litigation emerged immediately and, shortly thereafter, both publishers and authors sued Google.  (Some of the academic libraries, which formed or were part of HathiTrust Links to an external site., were sued in 2011.)  One Authors Guild commentator stated that the cases against HathiTrust and Google would be "a slam dunk victory" for the plaintiffs.  And, yet, both HathiTrust and Google won at trial and on appeal.  What accounts for the broad disjunction between what people expected, here, and how Google and HathiTrust were able to prevail?
  • While Google was the first target for litigation, the Authors Guild initiated its litigation against HathiTrust Links to an external site. after HathiTrust announced its orphan works project Links to an external site..  You may note some of the similarities (and differences) between the orphan works project Links to an external site. and the Controlled Digital Lending Links to an external site. initiative described, in part, in Hachette, below.  Ultimately, because HathiTrust ceased the orphan works project, it was not ripe for adjudication in the litigation against HathiTrust.  
  • Also note that in HathiTrust, the court found that HathiTrust made both transformative and traditional fair uses.  
  • We will have Paul Courant with us in class.  As University Provost from 2002-2005,  and as University Librarian and Dean of Libraries from 2007-2013, Paul was one of the primary movers and advocates for the University of Michigan to contract with Google, to create HathiTrust, and to defend the University's uses.  

 

Hachette v Internet Archive

 

ASTM v. Public.Resource.org

  • In ASTM, the court is pressed to adjudicate competing perspectives about whether fair use permits a website to give the public access to what the government has adopted as regulations.  The plaintiffs developed industry technical standards, and encouraged federal and state governments to adopt rules that require compliance with those standards.  Government agencies incorporated some of those standards into statutes and regulations.  Public.Resource.org Links to an external site. pursues a mission of making law easily available to the public.  It purchases, digitizes, and posts on its site copies of statutes, regulations, and technical standards required by law.  Entities that claim to own the copyrights in material posted by PublicResource.org have repeatedly sued it for copyright infringement Links to an external site., with mixed results.  Four years ago, in Georgia v Public.Resource.org Links to an external site.,  the US Supreme Court held that the Official Code of Georgia Annotation was an uncopyrightable government edict, even though the annotations had been written by a private government contractor rather than the Georgia legislature, and that Public.Resource.org was therefore not liable for copying and posting it.  In this case, Public.Resource.org copied and posted plaintiffs' technical standards.  Notice how the court relies on recent jurisprudence to shore up its transformative use analysis.  How does the argument for transformativeness differ from those in HathiTrust, Google, and Hachette?