In what can only be described as a total victory for libraries, Judge Harold Baer of the Southern District of New York held in an opinion published yesterday that the HathiTrust’s mass digitization project is protected fair use.
This isn’t news to academic and research librarians, who spoke loud and clear in the Code of Best Practices in Fair Use for Academic and Research Libraries. Judge Baer’s opinion should sound delightfully familiar to anyone who’s read Principles 3, 5, and 7 of the Code, which describe the consensus of academic and research librarians around preservation, accessibility, and non-consumptive uses (like search and text mining). Like the librarians, Judge Baer recognizes that these activities are “transformative,” especially the search and accessibility aspects. (For preservation he refers to the Sony decision, suggesting that non-commercial copying of this kind should be favored under the first factor.) He also recognizes that fair use generally favors these library uses as hugely valuable to the public, and particularly to “progress in science and the useful arts.” In short, Judge Baer fundamentally gets the bottom line assumption that also underlines the Code – that fair use can and does provide space for bold action by libraries in service of their public service mission, because that mission is itself in service of the same goals as copyright.
There’s a lot more to say and to celebrate in this opinion, and I’ll certainly be writing more here and elsewhere, but for now I just wanted to point out this wonderful affirmation of the logic of the Code.