Court: Searchable books database is ‘fair use’
NEW YORK -- The creation of a full-text searchable database of millions of books is a fair use of copyrighted works, a federal appeals court ruled Tuesday, saying it also is permissible to distribute the books in alternative forms to people with reading disabilities.
The 2nd U.S. Circuit Court of Appeals’ decision came in a copyright infringement lawsuit brought by authors and several authors’ groups after several research universities agreed in 2004 to let Google Inc. electronically scan their books and then created a repository for more than 10 million books published over many centuries and written in numerous languages.
In a decision written by Circuit Judge Barrington Parker, the three-judge Manhattan panel said the creation of a full-text searchable database was a "quintessentially transformative use" of a copyrighted work, a legal principle supporting a finding that it was lawful to copy and store books electronically without the permission of authors and publishers.
"There is no evidence that the authors write with the purpose of enabling text searches of their books," Parker wrote in a case widely watched within the publishing industry. He added that enabling the full-text search "adds to the original something new with a different purpose and a different character."
He said it was important that the repository "does not allow users to view any portion of the books they are searching." As a result, he added, it "does not add into circulation any new, human-readable copies of any books." The 2nd Circuit also said a lower-court judge was wrong to suggest a copyright could be overcome if a book made an "invaluable contribution to the progress of science and cultivation of the arts."
The lawsuit was filed after colleges, universities and other nonprofit institutions in October 2008 created the HathiTrust Digital Library. The group has at least 80 member institutions, including named defendants the University of Michigan, the University of California at Berkeley, Cornell University, the University of Wisconsin and Indiana University.
The library lets the general public search for particular terms but shows only page numbers where the term is found, unless the copyright owner has authorized more extensive information.
It also permits anyone who is able to prove that he or she cannot read printed material to access full books in alternative forms, such as through software that converts text into spoken words or that magnifies text.
Authors’ lawyer Jeremy S. Goldman said he had no comment.
Joseph E. Petersen, an attorney for HathiTrust and the schools, said his clients were "grateful that the court recognized the immense public value of the HathiTrust Digital Library and the fact that the project entirely comports with copyright law."
Attorney Daniel F. Goldstein, who argued the case on behalf of those with disabilities, said in an email that the ruling "radically changed for the better the lives of print-disabled Americans," including those with blindness, arthritis, dyslexia, cerebral palsy and upper spinal cord injuries. "Those of us without a print disability take for granted our easy access to our collective intellectual capital stored in libraries. Now that same access will be available to those with a disability."
In court papers, authors’ lawyers argued digital libraries were susceptible to hackers who might steal the books and called upon Congress on intervene. The appeals court said the record showed libraries had taken extensive security measures.
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