Fair Use Victory Advances a Future of Accessibility for All

Two days ago, on Tuesday, June 10, the Second Circuit Court of Appeals in New York made a major ruling that emphasizes the legality of fair use for book digitization. In Authors Guild v. HathiTrust, a unanimous three-judge panel concluded that digitizing books in order to enhance research and provide access to individuals with print disabilities is lawful on the grounds of fair use—that is, a limitation and exception to the exclusive rights granted by copyright law to the author of a creative work (Section 107 of the U.S. copyright law). This is an immense victory for fair use as the basis of a balanced intellectual property system, and we, at Benetech, are delighted by it and by its tremendous positive implications for the public interest.

What is this court case and why do we care so much about it? As a non-lawyer, let me explain from the point of view of a technologist who cares passionately about accessibility for people with disabilities.

The HathiTrust Digital Library (HDL) is a partnership of academic and research institutions that had created (with help from Google) a collection of millions of titles digitized from libraries around the world. It allows users to search book content that contains a match for their search terms. To most patrons, HDL merely delivers titles and page numbers as results, but the University of Michigan’s Library, one of the HathiTrust members, does allow access to the full text of copyrighted works for people with qualifying print disabilities. In September 2011, the Authors Guild sued the HathiTrust, alleging massive copyright violations. A federal district court ruled against the Authors Guild in October 2012, finding that HathiTrust’s process was fair use under U.S. law. One of the key justifications that the court used was the value of the scanned books for people who are blind, who could benefit so much more from an accessible digital version of a library book (which can easily be turned into braille or read aloud) than from a physical copy sitting in a dusty stack. The Authors Guild then appealed the ruling.

As the parent nonprofit organization of the Bookshare online library, a leading provider of accessible books to people with print disabilities in the U.S., we at Benetech were concerned that the Authors Guild’s arguments in their appeal would remove the legal authorization for the services that we provide, relegating people with disabilities to second-class status. I was an expert witness for the National Federation of the Blind (which had joined HathiTrust as a defendant) in the district court case, and Benetech filed an amicus brief in the HathiTrust appeal case supporting the decision of the district court. You can read more about our position in the Amicus Brief, which we filed jointly with our peer organization, Learning Ally.

Now, a year later, the Court of Appeals agreed: the HathiTrust creates immense public value and its core activities entirely comply with copyright law. They decided that it is fair use both to create a full-text searchable database of copyrighted works and to provide those works in alternate formats that are accessible to patrons with disabilities. Furthermore, they even decided the Authors Guild did not have standing to bring the suit in the first place.

With regards to fair use for accessibility, it is encouraging to see the court citing the historic legislation of the Americans with Disabilities Act, thus advancing a view of fair use that’s consistent with the norms that Benetech has long advocated for. We saw this view underscored in last year’s Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled—an international copyright treaty that would make copyright exceptions for people with disabilities a global norm and allow organizations like ours to share accessible books across national borders.

Given the Court of Appeals’ momentous ruling in the HathiTrust case, Benetech stands on firmer ground than ever as we deliver our Bookshare services under the protection of fair use, in addition, of course, to Section 121 of the U.S. copyright law, also known as the Chafee Amendment. A full explanation of how Bookshare is made legally possible by these two copyright exceptions can be found in my January 2014 post, The Case for Copyright Exceptions and Fair Use.

This fair use victory is crucial not only for our present work, but also for our social mission at large and for the future of our work under our Global Literacy program. In particular, we’re excited about the promise that the appeal court’s ruling holds for the expansion of our efforts to improve access to images. Before this case, I’m not aware that there had been an explicit discussion of the legality of the practice of granting individuals with disabilities access to images in alternate formats. The Court of Appeals explicitly included image accessibility in its ruling. It states the following about theHDL’s digitation process:

“The image files will provide an additional and often more useful method by which many disabled patrons, especially students and scholars, can obtain access to these works. These image files contain information, such as pictures, charts, diagrams, and the layout of the text on the printed page that cannot be converted to text or speech. None of this is captured by the HDL’s text‐only copies. Many legally blind patrons are capable of viewing these images if they are sufficiently magnified or if the color contrasts are increased. And other disabled patrons, whose physical impairments prevent them from turning pages or from holding books, may also be able to use assistive devices to view all of the content contained in the image files for a book. For those individuals, gaining access to the HDL’s image files―in addition to the text‐only files―is necessary to perceive the books fully. Consequently, it is reasonable for the Libraries to retain both the text and image copies.”

From Benetech’s perspective, this is truly a groundbreaking decision, as we have been working at the frontier of image accessibility through our DIAGRAM Center—a research and development hub dedicated to making it easier, cheaper, and faster to create and use accessible digital images. The imperative to make images accessible to individuals with disabilities is becoming increasingly pressing as digital content is quickly shifting to include richer, more visual components, and is especially critical for STEM (science, technology, engineering, and math) education.The DIAGRAM Center’s community is in the midst of efforts to make image accessibility significantly less costly by turning inaccessible images, such as equations in a digital math book, into machine-readable information. Section 121 doesn’t explicitly discuss image accessibility, and we’d been hoping that fair use covers much of the DIAGRAM Center’s work. The appeal court’s ruling has now addressed this and we are much more confident that the legal framework for our efforts will be grounded in the provisions of fair use.

At Benetech, our goal is to advance a world in which the benefits of technology touch the lives of all people, not just of the richest and most able five percent of humanity. No matter what area we work in, we need intellectual property laws that balance the interests of society with those of creators. For this IP system to work for all it’s critical that copyright exceptions such as fair use be defended as a laboratory for innovation. We are delighted that the Court of Appeals has done just that by championing a robust view of fair use that encourages technological advances, rewards creativity, and benefits society. With the leverage of technology and the foundation provided by well thought-out IP laws, we can inspire both economic growth and social good.