In a recently filed amicus brief, the Association of American Publishers (AAP) acknowledged that the decisions of the U.S. Court of Appeals for the Second Circuit in Authors Guild v. HathiTrust and Authors Guild v. Google reflected “carefully-limited reasoning and interest balancing.” This recognition of the validity of those decisions runs contrary to the previously-held positions of many organizations representing rights holders (including AAP) that the courts are out of control on fair use.
Over the past decade, the Second, Fourth, and Ninth Circuits have issued a series of decisions finding that copyright’s fair use right permits the verbatim copying of a large number of works into databases for search and other “non-consumptive” purposes. The Ninth Circuit in Kelly v. Arriba Soft and Perfect 10 v. Amazon.com allowed the copying of images found on websites, and the display of thumbnails of the those images in response to queries, for search purposes. The Fourth Circuit in A.V. ex rel. Vanderhye v. iParadigms permitted the copying of student papers into a plagiarism detection database. And in both Authors Guild v. HathiTrust and Authors Guild v. Google, the Second Circuit held that the scanning and storage of millions of books for indexing purposes was a fair use.