Universities are and have always been vast copy machines. Evolved from medieval monasteries and their vast libraries and scriptoria, universities have always had as central functions of their mission the copying, transforming, and preserving works of art, thought, and science and making them available to their patrons.
More recently, universities have found cause to make copies of books, articles, films, photographs, maps, and other materials in forms easily accessible to students through electronic reserves or course-management systems. In one of the most exciting recent copying projects, the University of Michigan at Ann Arbor has led a consortium called HathiTrust Digital Library that includes Cornell and Indiana Universities and the Universities of California, and Wisconsin at Madison. The consortium provides a vast online catalog of works scanned via Google Books, with full-text search capabilities. Most important, it allows sight-impaired readers to access and search the entire text of millions of works.
On Wednesday a federal judge ruled in favor of the trust and its university partners in a copyright-infringement lawsuit brought by the Authors Guild and other groups. In his ruling, the judge said that the trust’s handling of the scanned works falls “safely within the provision of fair use.” And, he wrote: “I cannot imagine a definition of fair use that would not encompass the transformative uses made” by the project.
And back in May, a federal judge ruled in favor of Georgia State University’s practice of making digital copies of books available through electronic reserves. In October 2011, a judge dismissed a copyright-infringement lawsuit against the University of California at Los Angeles over streaming videos online for courses.
As James Grimmelmann, a professor of law at New York Law School, has written, these three cases mark clear victories for universities.
I would go further and assert that these cases strengthen the claim that universities and their libraries have a special place in copyright law because they have a special place in society. Courts and even Congress have long acknowledged the essential role of copying in the educational process. That’s why the preamble to the section of the 1976 U.S. Copyright Act that outlines “fair use” specifies “teaching (including multiple copies for classroom use), scholarship, or research” as examples of “fair uses”—uses that, although they involve the copying of protected material, are considered noninfringing because they enable essential public goods.
Universities are not copyright-free zones—far from it. But they do perform special services that often demand flexibility and liberties that enable them to “promote the progress of science and useful arts,” the core mission of copyright as declared by the U.S. Constitution.
Sometimes, as the law professors Kal Raustiala of UCLA and Christopher Sprigman of the University of Virginia have demonstrated in their fascinating new book, The Knockoff Economy: How Imitation Sparks Innovation, the lack of intellectual-property rights or enforcement promotes the progress of science and the useful arts. That is often the case at universities.
In the HathiTrust case, the Authors Guild claimed to represent the interests of authors in general (a dubious claim, as only about 8,000 successful authors belong to the guild). The guild had tried to convince the judge that the very act of copying, carried out by Google in partnership with certain universities, constituted infringement for which there was no fair-use defense. The guild also argued, quite weakly, that the special section of the Copyright Act that allows libraries to make copies for preservation precludes any fair-use defense.
It’s important to note that in ruling in favor of the consortium and it’s “transformative uses” of copying, Judge Harold Baer Jr. did not rule that all scanning for all purposes by universities should be considered fair use. The trust’s particular uses are considered transformative and thus fair. Baer accepted almost verbatim the arguments that a group of digital-humanities and law scholars made in an amicus brief submitted to the court. When scholars can clearly and proudly explain the value of their work, it’s possible to sway policy and law.
We have also likely seen the end of the long drama over the legality of Google’s book-scanning efforts, with the Association of American Publishers’ settlement of its eight-year lawsuit against the company. The drama started in 2004 with grand declarations about how the book-scanning project led by one audacious company would transform learning and libraries and enlighten the world. The drama ended with Google becoming just another used bookstore and libraries growing more confident in their role as agents in the digital transformation of knowledge.
The terms of the settlement are secret, which is troubling on a number of levels, especially because it raises antitrust concerns. But it seems clear that publishers see Google’s ability to sell electronic books as beneficial to them overall, especially as a market counterweight to the behemoth that is Amazon.
In any event, we are never going to see that operatic courtroom showdown between Google and publishing industry over whether the sweeping scanning of millions of books for explicitly commercial purposes constitutes a fair use by Google. I have written many times over the years that I am dubious of the strength of Google’s argument, and nothing in either the settlement news or the HathiTrust case has undermined my conclusion.
It’s important that Congress, the courts, and the rest of us remember that fair use is designed for just the sort of transformative, beneficial public services that universities and their libraries provide. That’s why Hathi and the universities won so clearly this week (although this case could be appealed to the Second Circuit Court of Appeals).
Google is not a library. It is not a university. It is not a public service. It is a business. Too often we forget those distinctions. The project of creating, maintaining, and offering vast collections of digital material should be something that universities and libraries control, not something we depend on one company to handle.
Siva Vaidhyanathan is a professor and chairman of the department of media studies at the University of Virginia, and teaches in its law school.