Fair Use Prospers on Campus

Last week's decision in Authors Guild v. HathiTrust -- upholding the Mass Digitization Project (MPD) -- was a big victory for fair use. The MDP is a project where university libraries and Google have together digitized over 10 million books to allow for full-text searches, preservation, and access for people with print disabilities. When the Authors Guild sued for copyright infringement, HathiTrust defended the suit by arguing that the MDP is fair use.

Judge Baer upheld the MDP. His decision recognizes that the project is a massive public good: it is a tool for scholarship, prevents the loss of our cultural heritage, and provides unparalleled access for the visually impaired. Significantly, he found that these educational purposes are "transformational" in a way that supports fair use.

The HathiTrust case is the most recent of a trio of significant copyright victories for educational institutions. In May, Judge Orinda Evans of the Northern District of Georgia issued an exhaustive 350 page opinion) that mostly upheld Georgia State University's e-reserve system for posting excerpts of copyrighted material online for students. Relying especially on the fact that the excerpts were used for the educational purpose of teaching and scholarship, the court found the e-reserves system to be fair use.

Last year, Judge Consuelo Marshall of the Central District of California, held that UCLA was entitled to stream copies of DVD's that it had already licensed for public performance. Furthermore, the court held that any acts of copying needed to facilitate this streaming to students were "incidental" fair use.

A number of scholars (including James Grimmelmann, Mike Madison, and Kevin Smith) have noted that these cases represent an important trend in favor of educational fair use. I think there is another important lesson in these decisions: the value of a flexible fair use standard. In many countries, fair use (alternatively known as fair dealing) is governed by a rigid set of statutory criteria. If a use doesn't fit neatly into one of the statutory boxes, it is not allowed. In contrast, fair use in the United States is decided under a flexible four-factor balancing test.

A flexible fair use standard has its downsides -- the main cost being the lack of predictability (David Nimmer has famously compared the four-factor test to a "dartboard"). But it also has the benefit of adaptability. It is impossible for Congress to anticipate all new technologies and uses. So when new technology allows for a productive use like the MDP, a court can freshly apply the fair use factors and reach a just result.

Indeed, Judge Baer recognized that the MDP took him into uncharted territory, noting that "the facts here may on some levels be without precedent." Nevertheless, the flexible fair use factors allowed him to consider whether the MDP promoted copyright's original constitutional purpose. Looking at it that way, he could only reach one result:

I cannot imagine a definition of fair used that would not encompass the transformative uses made by the defendants and would require that I terminate this invaluable contribution to the progress of science and the cultivation of the arts that at the same time effectuates the ideals of the ADA

Konomarked photo: Mansueto Library at the University of Chicago (a member of HathiTrust digital library) by Eric E. Johnson.