Is the mass scanning of books copyright infringement or fair use?

This questions was the center of a 2005 suit between theAuthors Guild and Google. It once again emerged in late September of 2011 when the the Authors Guild, the Australian Society of Authors, the Union Des Écrivaines et des Écrivains Québécois (UNEQ), and eight individual authors filed a copyright infringement lawsuit in federal court against HathiTrust, theUniversity of California, the University of Michigan, the University of Wisconsin, Indiana University, and Cornell University.

What was originally at issue: the universities had obtained from Google scans of an estimated 7 million books, the rights to which are held by authors in dozens of countries. The universities had pooled the files in a repository organized by the University of Michigan called HathiTrust. In June of 2011, Michigan announced plans to permit unlimited downloads by its students and faculty members of copyright-protected works it deems orphans--works that are subject to copyright but whose rights holders can't be identified or located. Other universities joined in Michigan’s decision in August of 2011.

The initial Authors Guild complaint registers two major issues: 1) Some of the scanned books are still copyrighted, and the participating American universities had neither the authority to digitize them nor to make them digitally available, and 2) The protection of the digitized files is questionable--the security of the program and its servers are unknown.

The Guild sought an injunction barring the libraries from future digitization of copyrighted works; from providing works to Google for its scanning project; and from proceeding with their plans to allow access to “orphan works.” It also asked the court to “impound" all unauthorized scans and to hold them in escrow “pending an appropriate act of Congress."

In response, the HathiTrust altered its orphaned works program. A new outline for it can be seen here.

This case has recently come back into the spotlight, because both the Authors Guild and HathiTrust filed motions for summary judgment on 29.June 2012. The Authors Guild asserts it should win because the library defendants have no viable defense for their mass-digitization program, while the HathiTrust argues that it should win because its program falls under fair use, or 17 U.S.C. § 107.

Judgment in Fair Use cases looks to four planks:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The Authors Guild's motion for summary judgment claims, ""Discovery has only reinforced how brazen Defendants, and their business partner, Google, have been...For all intents and purposes, Defendants permitted Google to back trucks up to university library loading docks, empty every book from every shelf, drive the trucks to one of several top secret Google-operated scanning centers, digitize each work, keep a digital copy for Google’s own commercial purposes and then return the printed work and a digital copy to Defendants for their own use.” Additionally, the Guild argues, “nothing in copyright law permits the unlicensed scanning, copying and use of millions of copyrighted books, whether by a giant commercial entity like Google or a group of university libraries.”

They rebuke HathiTrust's fair use claim by arguing that “any public benefit” offered by the HathiTrusts’s mass digitization program is “outweighed by the actual and potential harm to authors’ interests.” Instead of adjudicating the case under fair use, the The Guild contends that it should be adjudicated under the so-called "library exemption," or 17 U.S.C. § 108. These exemptions include the ability to make or distribute a copy of a published work, to make or distribute up to three copies of an unpublished work, and to make or distribute up to three copies of a published work in poor condition or in an obsolete format, subject to certain conditions.

Among the Guild's arguments regarding section 108 is that the statute contains a “threshold” condition stating that any reproductions must be made without “direct or indirect” commercial advantage. “Even if the defendant libraries do not themselves have a commercial purpose,” the AG brief states, “Google certainly does.” In addition, the AG notes that the HathiTrust project oversteps section 108 in other ways, for example, it makes more copies of each work than the three copies permitted by law; that the program does not limit copying to works that were damaged or deteriorating; and did not, as required, determine whether reasonably priced replacement copies could be obtained before creating copies.

The Guild argues. “If Defendants’ preservation needs are not being met by the statutory allowance, their remedy is to either lawfully purchase digital copies of the books they wish to keep or to petition Congress to amend the statute. They may not take copyright law into their own hands.”

The HathiTrust has responded by claiming that nothing in Section 108 “preempts application of Section 107.” HathiTrust attorneys argue the law goes so far as to expressly state that nothing in section 108 “in any way affects the right of fair use as provided by section 107.” While maintaining their fair use claim--and while claiming that the library exemption doesn't preclude fair use--the HathiTrust has responded by claiming the Authors Guild is essentially asking the court to “punt,” on digitization, with the “hope that Congress will catch the ball.” The Authors Guild, meanwhile, counters that “impatience with the legislative process” is not an excuse for libraries to undertake a project that “fundamentally reshapes copyright law," because reshaping it to accommodate mass digitization is the purview of Congress.

This is certainly an important case to watch. The Authors Guild successfully sued Google's digitizing program, and they are pursuing a similar path with HathiTrust.

Behind both of these litigations sits a larger, lurking issue. As we move into large-scale digitizing of sources--including copyrighted sources, we will have to rethink the contours of not only fair use, but also of library exemptions, and, perhaps, of copyright itself. If a digital material is easily duplicated and transmitted, then we need to fundamentally rethink laws designed for the sale and transfer of a material good.

I don't have any answers to this throny issue, nor will I predict how this case will play out.

It is simply something very important for us to watch. How it unfolds will affect digitization projects across America.