Court Hands Huge Victory To Universities' Digitization Efforts

Universities can proceed with their efforts to scan books, not just because of the ability to search, but because of the huge benefits to blind students.

One of the biggest questions in copyright law today is what kinds of repurposing fall under the "fair use" exception. If a university scans a book and allows students to download it, is that a violation of copyright law? What if students can't download it, but can search through it? What if only certain students can download it?

These questions are at the center of a lawsuit brought by a group of authors, The Authors Guild, and several other associations against HathiTrust, a massive repository of digital books, founded and supported by many of the country's leading universities. For a few years, Google has been scanning the books held in these universities' libraries, retaining a digital copy for itself (the contents of which fuel Google Books' "snippet view" we all know and love/hate), and providing another for the universities, which all students can search but whose entire texts are only available to students with visual disabilities who do not have access to printed works. If you're a student who can see just fine, a search of copyrighted works (which make up about three-quarters of the 10 million scanned books) will only provide you with a page number, and from there it's off to the hard copy for you. The universities, Google, and HathiTrust all keep full, digitized copies.

Is this fair use? Yesterday, in a decisive, make-no-bones-about-it opinion, a federal court in New York said yes, this was quite fair indeed. Two lines of argument run through the court's reasoning: 1.) remaking a text for search constitutes a "transformative use" and therefore falls under fair use, and 2.) the Americans With Disabilities Act does not merely make this activity legal, it may even require it. (The full text of the opinion is available here.)...