Digitizing Books is Fair Use

Google Books is a useful research tool.  It permits you to scan the contents of millions of books that Google paid to have digitized.  If the book is in the public domain, you can see the entire text of the book.  If the book is still under copyright, you can still see the entire text (if the copyright owner has authorized it), or you can at least see the book's table of contents and "snippets" of some of the book's text.  Either way, Google directs users to places like Amazon where you can buy an authorized copy.

Google obtained many of its books through a deal with major university libraries, including the University of California and the University of Michigan.  The libraries loaned the books to Google, which scanned the books and returned the books to the libraries with a copy of the digital scan.  Google used the digital scans for its own Google Books tool, and the libraries used the scans as well.  The libraries set up a trust, the Hathitrust, to coordinate their use of the digital scans.  The libraries had their own search feature for research purposes, and also allowed blind or print-disabled people to have access to the entire books (as permitted under the Copyright Act and the Americans with Disabilities Act).  

If all this sounds like fair use, it should.  Library research is a classic fair use.  Despite this, The Authors Guild filed two lawsuits, one against Google and one against the Hathitrust.  I helped EFF file an amicus brief in the Google books case in support of Google's fair use defense; EFF and its library co-amici filed a version of that same brief in the Hathitrust case. 

In a victory for fair use and libraries, yesterday the Judge overseeing the Hathitrust case agreed with the defendants' fair use defense and dismissed the case.  EFF's post discussing the dismissal is here; Techdirt's is here; Arstechnica's is here.  Those commentators note that this opinion's reasoning might also apply to the Google Books case, since the cases are similar.  On that point, one wonders why The Authors Guild sued the libraries directly in the first place, instead of just suing Google.  The libraries are sympathetic defendants, and part of their activities were clearly helping blind people, which the Judge's opinion referred to several times.  Beating up on blind people isn't the best way to win a lawsuit -- especially given express provisions in the Copyright Act supporting access to copyrighted works for disabled people, and the ADA's stated purpose.