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Another Victory for Library Book Scanning as Fair Use

By William Peacock, Esq. on June 12, 2014 | Last updated on March 21, 2019

We called a similar case against Google "obvious from the outset" when the district court ruled book scanning "fair use." Thankfully, the Second Circuit didn't make us look like fools when the issue reappeared this year.

(Don't worry ... there's still time.)

If you've ever used Google Books, then you know what this is about: library mega catalogs. The HathiTrust Digital Library (HDL), a collection of universities, much like Google Books, scans the content of books in order to create the ultimate catalog: instead of just searching topic, author, or title, it searches the text. The full text of the books, however, is not available, unless the library patron is disabled. Otherwise, the catalog will point you to the actual book and the page where you can find your query. In fact, unlike Google (which won in the district court), HDL doesn't even provide a snippet of text -- just the page number.

The Google and HDL systems are a compromise between technological advancement and copyright law. And so far, the courts agree: it's fair use.

Book Scanning is Fair Use

The Second Circuit, like many courts before it, applied the four fair use factors from the Copyright Act, 17 U.S.C. § 107:

  1. Purpose and character of use, including whether it is commercial or nonprofit;
  2. Nature of the copyrighted work;
  3. Amount of the work used;
  4. Effect on the market for the work.

After an exhaustive recitation of the factors, the Second Circuit issued a limited, but positive holding: "the doctrine of fair use allows the Libraries to digitize copyrighted works for the purpose of permitting full-text searches." The panel was also careful to note that it was not "foreclosing a future claim based on circumstances not now predictable."

Fascinating Side Note: The Orphan Works Project

The Second Circuit talks about a side project that hasn't received much attention to date: the Orphan Works Project (OWP). It puts out-of-print, but in copyright works online, but only if the copyright holder cannot be reached or did not object. Interestingly, the number of simultaneous viewers online is limited to the number of print copies available at the library.

The program was suspended indefinitely when the University of Michigan discovered that their screening process for identifying out-of-print works was flawed. It's an interesting approach to the orphaned works problem -- the British Library estimates that 40 percent of the copyrighted works in its catalog fall into this category, reports the Economist.

Because the program is currently suspended, the panel declined to address the OWP, noting that it was not yet ripe for adjudication.

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