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Wayne State University

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Oct 30 / Geoffrey Nathan

A ‘Fair Use’ Victory

Over the past couple of years there has been a major legal debate between organizations representing authors and publishers on the one hand, and a couple of major Internet entities–Google and the Hathi Trust.

The Hathi Trust, based at Michigan, is a coalition of a number of large universities. Its mission is ‘to contribute to the common good by collecting, organizing, preserving, communicating, and sharing the record of human knowledge.’ and its goals include:

  • To build a reliable and increasingly comprehensive digital archive of library materials converted from print that is co-owned and managed by a number of academic institutions.
  • To dramatically improve access to these materials in ways that, first and foremost, meet the needs of the co-owning institutions.
  • To help preserve these important human records by creating reliable and accessible electronic representations.

Essentially, Google helped Michigan and the other universities virtually scan all the books in their libraries in order to make them searchable and store their contents electronically. The idea was to make the books accessible to visually impaired students, and to allow researchers to search the entire corpus of texts. Linguists, for example, search written texts for early uses of particular words, or when studying grammatical constructions. Needless to say, such research would be impossible if it was necessary to read through every book in the U of M Library to find instances of the word there used as a subject of verbs other than be, appear, and seem (this happens to have been part of my dissertation research). And, of course, my doing that research would not have had any effect on the sales of the physics texts, novels and encyclopedias of fungi that are located in the library and were scanned. But the Authors’ Guild argued that this scanning reduced their sales and deprived them of income.

Last week U.S. District Judge Harold Baer Jr. (Southern District of New York) ruled that this scanning constituted ‘fair use’ of copyrighted material, and threw the Authors’ Guild suit out. He wrote ‘I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP [mass digitization project] and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA [Americans with Disabilities Act].’ (The whole decision is available here.)

The notion of ‘transformative use’ is crucial in permitting use of copyrighted material without permission. It is what allows parodies, criticism, and now, crucially, linguistic and sociological research. It’s hard to imagine what the world would be like if a book review required the author’s permission to quote from the book being reviewed.

And, as was pointed out in Inside Higher Ed, this is the third major copyright case that universities and scholars have won. You may recall from a year or so ago that some major textbook publishers sued the University of Georgia for putting too much material into online coursepacks (inside Blackboard, incidentally). The judge in that case threw out most of the Association of American Publishers and the Copyright Clearance Center’s lawsuit also. And finally, a group representing documentary film makers failed in a lawsuit against UCLA.

Ultimately I think the major ‘take-away’ is that when scholars use copyrighted material in their research and teaching they are not ‘stealing’ it, and their use of it is unlikely to affect royalties going to authors. This makes these cases different from the music and movie industry’s war against ‘unauthorized’ downloading (whatever you think of the morality/legality of those cases).

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  1. John Lawler / Nov 5 2012

    This is good news. I’d been hoping for a long time that the digitized UM Library resources would become available to me electronically, since I live on the West Coast now that I’m retired from the UM faculty.

    Of course, I still can’t get at them; but perhaps this will change. Who knows?

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