The fair use opinion in Authors Guild v. HathiTrust is out, and it’s a big win for the defendant on fair use. I usually turn to James Grimmelmann for an incisive summary of such things, and James doesn’t disappoint. I think that he is on to something very important with this conclusion: ”[U]niversities making internal technological uses of copyrighted works are doing quite well in court of late. Something significant in judicial attitudes towards copyright, computers, and education has clicked into place of late.”
I hope that what James means — and what I mean by adopting his conclusion — is that “computers” (technology, networks, etc.) are keys to these fair use cases in the sense that courts are starting to understand that computing technology is part of “normal” (i.e., usual) modes of education and “normal” (i.e., usual) modes of creating, accessing, and using copyrighted (and other) works, at least in the educational setting. In other words: There is nothing so special about computers in these cases. I would not suggest that “computers” are somehow critical to the cases in the sense that if the indexing or related practices were undertaken without computers, then the fair use arguments would somehow be weakened. The “computer” versions of analog activities used to be the hard cases; it was often assumed that “analog” uses (indexing, annotating, creating access to reserve copies) was likely to be fair use. If the “computer” version is now likely to be deemed fair use, then working backward leads me to the probable conclusion that the fair use case for analog equivalents has gotten even stronger. ”Computers” is becoming the new copyright normal. And if these fair use cases turn out to generalize even a bit beyond the education context, then the “copying” that “computers” do will turn out to be less fraught than ever as a presumptive basis for finding infringement.
For the time being, I’m intrigued by the role that universities are playing here. In the so-called (and somewhat imaginary) “pre-computer” age (prior to the Internet, which is why it’s somewhat imaginary), copyright (all dimensions of copyright, not just the shorthand that copyright equals rights for authors) and education (all dimensions of education, including research, scholarship, and teaching — and access to these things and the ability to distribute their fruits) had a lot to do with each other. They were readily viewed as complementary. But computers (read: the Internet) came along, and that state of relative harmony started to break down. When Metallica first went after the original Napster, who did Metallica sue? Universities! (For the record, as I recall Metallica first sued Yale, Indiana University, and the University of Southern California). Naively, I gave a presentation at the time in which I suggested that this actually played into the hands of the defendants, because if no one else had the resources and cultural incentive to stand up for open sharing of knowledge (and music is, among other things, a form of knowledge), then universities would. Of course, I was wrong at the time. I was also, it turns out, about a dozen years early.