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Federal appeals court: Massive searchable database is 'fair use' of copyrighted works

NEW YORK, N.Y. - The creation of a full-text searchable database of millions of books is a fair use of copyrighted works, a federal appeals court ruled Tuesday, saying it also is permissible to distribute the books in alternative forms to people with disabilities.

The 2nd U.S. Circuit Court of Appeals' decision came in a lawsuit brought by authors and several authors' groups after several research universities agreed in 2004 to let Google Inc. electronically scan their books and then created a repository for more than 10 million books published over many centuries and written in numerous languages.

In a decision written by Circuit Judge Barrington Parker, the three-judge panel said it concluded that the creation of a full-text searchable database was a "quintessentially transformative use" of a copyrighted work, a legal principle necessary to be established before the court could find that it was lawful to copy and store the books electronically without the permission of the authors and publishers.

"There is no evidence that the authors write with the purpose of enabling text searches of their books," Parker wrote. He added that enabling the full-text search "adds to the original something new with a different purpose and a different character."

The lawsuit was filed after colleges, universities and other non-profit institutions in October 2008 created an organization they called the HathiTrust Digital Library. The group has at least 80 member institutions, including named defendants the University of Michigan, the University of California at Berkeley, Cornell University, the University of Wisconsin and Indiana University.

The library lets the general public search for particular terms but shows only page numbers where the term is found, unless the copyright owner has authorized more extensive information.

It also permits anyone who is able to prove that he or she cannot read printed material to access full books in alternative forms, such as through software that converts text into spoken words or that magnifies text.

Jeremy S. Goldman, a lawyer for authors, said he had no immediate comment Tuesday.

Joseph E. Petersen, an attorney for HathiTrust and the schools, said his clients were "grateful that the court recognized the immense public value of the HathiTrust Digital Library and the fact that the project entirely comports with copyright law."

Attorney Daniel F. Goldstein, who argued the case on behalf of those with disabilities, praised the ruling.

"Today the Second Circuit radically changed for the better the lives of print-disabled Americans, that is, those who cannot readily access printed text, whether because of blindness, arthritis, dyslexia, cerebral palsy, upper spinal cord injury or a host of other conditions," he said in an email. "Those of us without a print disability take for granted our easy access to our collective intellectual capital stored in libraries. Now that same access will be available to those with a disability."

In court papers, lawyers for the authors argued that digital libraries were uniquely susceptible to cybertheft and called upon Congress on intervene.

"As the self-appointed custodians of the world's largest database of digitized copyright-protected books, the libraries wield tremendous power and responsibility in ensuring the security of the intellectual property they amassed without authorization," they said.

The appeals court also returned issues raised over so-called orphan works to the lower court for further proceedings.

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