Category: digital humanities

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HathiTrust Wins on Fair Use, and just about everything else

Landmark Fair Use Win

Yesterday, District Judge Harold Baer, Jr., handed down his decision in Authors Guild v. HathiTrust, a case that spins out of the long-running Google Books dispute. The decision is a landmark win for the HathiTrust, the University defendants, people with print-disabilities, Google, the Digital Humanities and, I would argue, for humanity in general.

Essential Background

The HathiTrust is a digital repository of millions scanned university library books that became available to various universities by virtue of the Google Books project.  About 3/4 of the books are still in copyright. In 2011 HathiTrust announced plans to embark on an innovative orphan works program (OWP), but dropped (or at least shelved) the plan soon after in light of criticism as to its implementation. Spurred into action by the OWP, in September 2011 the Authors Guild filed a copyright lawsuit against HathiTrust, five universities, and multiple university officials.

The Authors Guild suit alleged that library digitization for any purpose amounts to copyright infringement. The purposes specifically under attack in this case were (i) preservation; (ii) to enable non-expressive use such as conducting word searches; and (iii) to facilitating access by persons who are blind or visually impaired.

There is a key fact in this case that media reports will probably get wrong. This is not about scanning books to make extra copies for the public at large. As the Court explained, “No actual text from the book is revealed except to print-disabled library patrons at [University of Michigan].” Authors Guild v. HathiTrust, p 16. This case was about library digitization for three specific purposes, preservation, disabled access and non-expressive uses such as text searching and computational analysis.

The Score Card

Here is quick and dirty summary of the key copyright issues:

  • Digitization to provide access for the print-disabled held to be transformative use and, on balance, fair use.
  • Digitization to provide for print-disabled students held to be (i) an obligation of universities under the ADA, (ii) fair use under section 107 of the Copyright Act and (iii) enabled by section 121 of the Copyright Act.
  • Section 108 the Copyright Act was held to expand the rights of libraries, not limit the scope of their fair use rights in any way, shape or form. Given the text says “Nothing in this section . . . in any way affects the right of fair use as provided by section 107” any ruling to the contrary would have been pretty shocking.
  • Digitization to create a search index held to be a transformative use, and, on balance, fair use.
  • Alleged security risks created by library digitization — dismissed as speculative and unproven. The judge noted the strong evidence to the contrary. It is still an open question whether the risk of subsequent illegal act by a third party could ever render an initial lawful copy not fair use. The whole notion strikes me as rather odd.
  • The market effect of library digitization — the court found there was none to speak of in this case. The court rejected the CCC’s magic toll-booth arguments — i.e., there were some wild assertions about future licensing revenue that the court rejected as “conjecture”.
  • The court also notes that a copyright holder cannot preempt a transformative market merely by offering to license it.
  • The market effect of enabling print-disabled access to library books — the court found there was no market for this under-served group, nor was one likely to develop.

Did the authors Guild win anything?
Not really, but two issues could have been even worse.

  • The court held that the issue of the Orphan Works Program was not ripe for adjudication. This was inevitable in my opinion, but the judge could have added unfavorable dicta indicating that the AG had no case here either. Wisely, the judge said only what needed to be said.
  • On the issue of library digitization for the purpose of preservation, the court found that the argument that “preservation on its own is transformative is not strong.”

The Digital Humanities

The court appeared to accept the arguments in the Digital Humanities amicus brief, written by Matthew Jockers, Jason Schultz and myself with the assistance of many others. The brief extended arguments I made in Orphan Works as Grist for the Data Mill, 27 Berkeley Technology Law Journal (forthcoming) and Copyright and Copy-Reliant Technology 103 Northwestern University Law Review 1607–1682 (2009).

Following Second Circuit precedent, the court explained that

“a transformative use may be one that actually changes the original work. However, a transformative use can also be one that serves an entirely different purpose.”

The court concluded that

“The use to which the works in the HDL are put is transformative because the copies serve an entirely different purpose than the original works: the purpose is superior search capabilities rather than actual access to copyrighted material. The search capabilities of the HDL have already given rise to new methods of academic inquiry such as text mining.”

The court even cites an illustration from our brief!

“Mass digitization allows new areas of non-expressive computational and statistical research, … One example of text mining is research that compares the frequency with which authors used “is” to refer to the United States rather than “are” over time. See Digital Humanities Amicus Br. 7 (“[I]t was only in the latter half of the Nineteenth Century that the conception of the United States as a single, indivisible entity was reflected in the way a majority of writers referred to the nation.”).”

Google Ngram Visualization Comparing Frequency of “The United States is” to “The United States are”

You can reconstruct the figure on Google Ngram yourself!

The court also cites our brief for the proposition that the use of metadata and text mining “could actually enhance the market for the underlying work, by causing researchers to revisit the original work and reexamine it in more detail”

Non-expressive use is fair use

The court did exactly what the amicus briefs urged it to do. As Matthew Jockers, Jason Schultz and I argued in our recent article in Nature last week (Digital Archives: Don’t Let Copyright Block Data Mining, 490 Nature 29-30 (October 4, 2012))

“It is time for the US courts to recognize explicitly that, in the digital age, copying books for non-expressive purposes is not infringement.”

Courts have already applied this logic in internet search engine cases and in a case involving plagiarism detection software. As we hoped, Judge Baer’s ruling demonstrates that digitization for text mining and other forms of computational analysis is, unequivocally, fair use.

“Plaintiffs assert that the decisions in Perfect 10 and Arriba Soft are distinguishable because in those cases the works were already available on the internet, … I fail to see why that is a difference that makes a difference.”

This was not a close case

“Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA.”

 

A significant win for the National Federation for the Blind

My focus in this case has always been on the technological side, that is my academic interest. However,the most important issue in this case is not about search engines, the digital humanities or non-expressive use, it is about reading, humanity and expressive use. I am of course referring to those aspects of the decision relating to fair use and persons with disabilities.

“[m]aking a copy of a copyrighted work for the convenience of a blind person is expressly identified by the House Committee Report as an example of a fair use, with no suggestion that anything more than a purpose to entertain or to inform need motivate the copying.”

As Kenny Crews summarizes:

“The opinion provides a strong opinion about fair use as applied to serving persons with disabilities, especially when an educational institution is mandated to serve needs under the Americans With Disabilities Act.  The court goes further and resolves a long-time quandary that arose under Section 121 of the Copyright Act.  That statute permits an “authorized entity” to make formats of certain works available to persons who are visually impaired.  An “authorized entity” is one that has a “primary mission” to serve those needs.  Libraries and universities have many functions, so is that service a “primary mission”?  The court said yes.”

 

Some useful links:

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Google Book Search: Digital Humanities still needs answers

Google has settled with the publishers, but not the Authors Guild. This is good news for the Digital Humanities because it means that we may still get a substantive ruling on the big fair use question underlying the entire litigation.

Human life is short, none of us can hope to read more than a smattering of the literary record, but fortunately massive digitization efforts like those undertaken by Google allow scholars to apply large-N computerized methods to millions of works. Computational and statistical analysis of literature will be a big part of humanities research for years to come. However, legal actions like those of the Authors Guild could bar scholars from studying as much as two-thirds of the literary record.

In a comment published in Nature today [paywall] [Nature Vol. 490, pages 29–30 (04 October 2012) doi:10.1038/490029a], Matthew Jockers (an English professor), Jason Schultz (a law professor) and myself (also a law professor) explain why the the Association for Computers and the Humanities and a large group of scholars chose to file an amicus curiae brief on behalf of the digital humanities in the Authors Guild v. Google and Authors Guild v. HathiTrust cases.

In the brief we explain why U.S. courts should recognize that copying books for non-expressive purposes is not infringement.

My view is that the settlement between Google and the publishers makes such a ruling more likely because it provides further evidence that the ability to make non-expressive uses of copyrighted books works hand in hand with the commercialization of expressive uses which is what copyright law is all about.

For more on this topic, see https://matthewsag.com/projects/google-book-copyright-the-digital-humanities/

 

 

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more coverage of digital humanities amicus

I just read James Grimmelmann’s amusing and insightful post, Google Books: Even Friends of the Court Have Enemies. He concludes that “The opposition, overall, is a litigation tactic for the sake of tactics; I don’t see how it helps the plaintiffs either substantively or strategically.”

I won’t comment every time James says something worthwhile about the Google Books litigation, it happens far too often.

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Authors Guild Unable to Silence Amici

The Judge presiding over Authors Guild v. Google granted leave to file for the Digital Humanities brief and an amicus brief by the American Library Association, the Association of College and Research Libraries, the Association of Research Libraries, and the Electronic Frontier Foundation. The Judge also ordered the Plaintiffs to respond to the amici curiae briefs by September 17, 2012 in a memorandum of law not to exceed 40 pages.

40 pages seems like quite a bit, so it should give the Authors Guild a chance to address all the case law they have conveniently ignored until now. This might be an indication that the court is taking the arguments of the amici seriously, or just that Judge Chin did not want to hear any morecause for compliant from the Authors Guild et al.

Oral argument on the motions for summary judgment is set proceed on October 9, 2012 at 10 AM. Oral argument on the motions for summary judgment shall proceed on December 4, 2012 at 2PM (this was order #4 on 2012-08-17).

 

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Great panel at IPSC on orphan works, library digitization and fair use

In “The Orphans, the Market, and the Copyright Dogma” Ariel Katz notes that extended collective licensing (ECL) proposals will do nothing to solve the underlying orphan works problem. Like “Indulgences” ECL solutions merely absolves the “sin” of using works without permission, but actually does nothing to pay the absent owners.

In “How Fair Use Can Help Solve the Orphan Works Problem” Jennifer Urban does a great job of explaining how the rest of us have under-analyzed the second fair use factor in relation to library digitization. She points out that in the Senate Report on the 1976 Copyright Act they say directly that market availability is part of the nature of the work.

In my own paper “Orphan Works as Grist for the Data Mill” I explain why copyright does not stand in the way of nonexpressive uses. My argument is that just as the distinction between expressive and nonexpressive works is well recognized. The same distinction should generally be made in relation to potential acts of infringement.

Copying for purely nonexpressive purposes, such as the automated extraction of data, should not be regarded as infringing.  Automated reproduction for nonexpressive uses (such as search engines, plagiarism detection, and macro-literary analysis) does not communicate the author’s original expression to the public, there is no expressive substitution, and thus there is no infringement. For more on Copyright and Copy-Reliant Technology, read my 2009 article of the same name.

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What is at stake in Authors Guild v. Google; Authors Guild v. HathiTrust

Now that the Google Book Settlement is well and truly dead, attention is turning back to the underlying legal controversy. There are many issues in Authors Guild v. Google and the parallel case of Authors Guild v. HathiTrust, but the main one is simple. Does copying books so that computers can analyze them infringe copyright even if none ever reads that copy?

If the answer is yes, then, through the magic of class action law, the Authors Guild gets to sue Google for a minimum of $750 x several million books. Who would get these billions of dollars is unclear.

If the answer is no, then the Authors Guild would have to point to instances where Google has made a nontrivial portion of a book available to the public without permission of justification such as fair use. There might be one or two of these, but I think Google won’t loose sleep about statutory damages for a handful of books.

I recently wrote an amicus brief, along with Matthew Jockers (Assistant Professor of English at the University of Nebraska, Lincoln) and Jason Schultz (Assistant Clinical Professor of Law; Faculty Co-Director, Samuelson Law, Technology & Public Policy Clinic), arguing that such non-expressive is use fair use. I.e., that text-mining is not copyright infringement.

More than 60 professors and researchers in the digital humanities joined our brief because, as we said:

“If libraries, research universities, non-profit organizations, and commercial entities like Google are prohibited from making non-expressive use of copyrighted material, literary scholars, historians, and other humanists are destined to become 19th-centuryists; slaves not to history, but to the public domain. History does not end in 1923. But if copyright law prevents Digital Humanities scholars from using more recent materials, that is the effective end date of the work these scholars can do.”

This is what is at stake.

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Authors Guild asks Judge to Ignore the Digital Humanities

Counsel for the Authors Guild have asked the court to deny our motion for leave to participate as amici in the case of Authors Guild v. Google.

On Friday August 3, 2012, the Association for Computers and the Humanities and a group of 64 scholars from disciplines including law, computer science, linguistics, history and literature filed an amicus brief on behalf of the Digital Humanities urging the court in Authors Guild v. Google to grant summary judgment in favor of the defendant.

In its 10 page memorandum in opposition the Guild argues that “It is inappropriate for these entities to inject themselves into private litigation.” This seems a bit rich given that the Authors Guild, a group of some 8500 authors, is trying to assert the right to say no to digitization of over 20 million books. That is leverage on a ratio of more than 2000:1. The Guild is trying to set a legal precedent that would render text-mining without individual permission in any context unlawful. Digital Humanities scholars should not be relegated to studying literature prior to 1923.

This case is not a private arbitration, it will establish an important precedent that either confirms the legitimacy of search engine technology, plagiarism detection software and computerized analysis of text.

The Guild says that our brief simply argues Google’s case and does not have anything to add. Yet at the same time they complain that the digital humanities scholars seek to inform the court about “text-mining and computation analysis”.

The Guild also argues that our legal argument that non-expressive use should be fair use is really just a disguised expert opinion. No doubt, if I was deposed as an expert witness they would complain that my views were just legal argument in disguise.

The digital humanities brief is not, as the Guild contends, asking for an advisory opinion. The brief alerts the court to the important implications of its ruling and highlights what the Authors Guild tries to obfuscate, that this case is much bigger than Google, it’s about the future of humanities scholarship.

The Author’s Guild argues that it is not fair that the digital humanities scholars (and another brief filed by the American Library Association) will each add another 26 pages to their workload.  1056 documents have been filed in this case! It is hard to see the burden of another 26 pages.

Judge Deny Chin (Southern District of New York) is scheduled to hear the parties’ motions for summary judgment on October 9, 2012.