This time the victory comes in a ruling on the case brought by the Author’s Guild against the HathiTrust Digital Library, of which Boston College is a member.
Among otherr issues litigated was whether HathiTrust could create a searchable index of digitized texts and supply them to print-disabled readers. Kevin Smith has provided a good analysis of the ruling and notes:
Judge Baer first held that the purpose of the use was research and scholarship, which are favored in the fair use statute. But he went on to hold that the use of these copyrighted materials in HathiTrust was also a transformational use. Unlike Judge Evans in the GSU case, Judge Baer cited case law that has determined that a use can be transformational because it has a different purpose, not only when an actual change in content has been made. And providing a searchable database of books, within copyrighted works only available to the visually-impaired, was, in the Court’s opinion, transformative.
Judge Baer concludes with this sentence:
I cannot imagine a definition of fair used that would not encompass the transformative uses made by the defendants and would require that I terminate this invaluable contribution to the progress of science and the cultivation of the arts that at the same time effectuates the ideals of the ADA.
As the last part of this comment indicates, the Judge also upheld the provision of digital files to persons with visual disabilities to facilitate adaptive access, using a combination of fair use and section 121of the copyright law. Hard to believe that the AG thought it was a good idea to challenge that practice, but they did. So overall this is a comprehensive win for the libraries and for the important public interest that they serve.