Page:A White Paper on Controlled Digital Lending of Library Books.pdf/12

 The Copyright Act does not address how fair use should interact with other provisions of the law. In fact, rightsholders have in some cases argued that if a specific statutory exception exists, that specific exception should preclude application of the more general doctrine of fair use. When raised, courts have largely rejected that argument. For example, in Sega Enterprises Ltd. v. Accolade, Inc., Sega argued that the presence of a specific statutory exception regarding computer programs (Section 117) precluded Accolade from asserting a fair use defense for copying and disassembling Sega’s computer program. The Ninth Circuit found Sega’s argument “verges on the frivolous.” The court instead construed Section 117 and fair use together, the former defining a “a narrow category of copying that is lawful per se” and the latter establishing a broader “defense to an otherwise valid claim of copyright infringement.” “The fact that Congress has not chosen to provide a per se exemption to section 106 for disassembly does not mean that particular instances of disassembly may not constitute fair use.”

As a matter of copyright policy, the presence of a specific copyright exception (or, in some cases, other provisions of federal law) provides persuasive evidence of the kinds of purposes that should be favored in the fair use assessment. What better evidence of the types of uses that align with the goals of the copyright than those most similar to ones Congress has specifically authorized? While not extensively litigated, a number of cases indicate that this is the right approach, which we review here to give a sense of the strength of this position.

In Authors Guild v. HathiTrust, for example, one of the uses that the Authors Guild claimed was infringing was HathiTrust’s digitization and full-text access to millions of volumes of in-copyright books for print-disabled users. In assessing HathiTrust’s fair use defense, the Second Circuit looked closely at legislative history as well as other provisions of the law that spoke to access for the disabled. The Court cited the Americans with Disabilities Act as evidence of “Congress reaffirm[ing] its commitment to ameliorating the hardships faced by Page 12