Fair Use & Mass Digitization: The Future of Copy-Dependent Technologies After Authors Guild v. HathiTrust

Abstract

This Note discusses the future of digital libraries and other products reliant on mass digitization in the wake of the HathiTrust decision. First, this Note presents an overview of U.S. copyright protection and the ways in which its goal of incentivizing authors has consistently been balanced by efforts to protect preservation, access, and fair use. Next, the Note explores early formalities and the establishment of the national archive before discussing the modern Copyright Act and its series of statutory exemptions. After outlining the statutory provisions, the Note then discusses the fair use doctrine, focusing on its application to cases involving use for educational and research purposes. Second, this Note discusses the trial court opinion in Authors Guild, Inc. v. HathiTrust and the court’s fair use finding regarding the full-text search index and copies for the print disabled. The Note argues that this decision rightly solidifies the growing body of jurisprudence protecting uses that have a transformative purpose and that pose no threat of artistic substitution while providing a public benefit. However, the Note also argues that the same consideration cannot be applied to HathiTrust’s copies for the print-disabled and that the trial court’s fair use application and interpretation of § 121 may be narrowed or corrected on appeal. Third, this Note discusses the HathiTrust decision’s effect on the future of the Google Books case and argues that the fair use ruling paves the road for a similar finding while also giving Google leverage in its ongoing settlement negotiations. The Note argues that Google’s fair use defense is equally as strong as HathiTrust’s despite Google’s commercial exploitation because no artistic substitution exists and Google Books helps rather than harms the market for the copyrighted works. Fourth, after exploring the judicial efforts to protect useful technologies as a matter of public policy, this Note explores legislative solutions that would better advance copyright’s goals of promoting education, research, preservation, and access. The Note advocates for (1) expansion of § 108 library privileges to cover mass digitization and noncommercial exploitation; (2) expansion of protected entities that may make copies for the print-disabled under § 121; (3) establishment of a regulatory board to govern the exploitation of orphan works; and (4) categorical protection for technological uses that make use of copyrighted works in a way that does not substitute for the original’s expressive content.