Page:Authors Guild v. HathiTrust (2014).pdf/11

 Corp. v. Ross Inst., 364 F.3d 471, 481–82 (2d Cir.2004).

As discussed above, the Libraries permit three uses of the digital copies deposited in the HDL. We now consider whether these uses are “fair” within the meaning of our copyright law.

It is not disputed that, in order to perform a full-text search of books, the Libraries must first create digital copies of the entire books. Importantly, as we have seen, the HDL does not allow users to view any portion of the books they are searching. Consequently, in providing this service, the HDL does not add into circulation any new, human-readable copies of any books. Instead, the HDL simply permits users to “word search”—that is, to locate where specific words or phrases appear in the digitized books. Applying the relevant factors, we conclude that this use is a fair use.

Turning to the first factor, we conclude that the creation of a full-text searchable database is a quintessentially transformative use. As the example on, demonstrates, the result of a word search is different in purpose, character, expression, meaning, and message from the page (and the book) from which it is drawn. Indeed, we can discern little or no resemblance between the original text and the results of the HDL full-text search.

There is no evidence that the Authors write with the purpose of enabling text searches of their books. Consequently, the full-text search function does not “supersede[] the objects [or purposes] of the original creation,” Campbell, 510 U.S. at 579, 114 S.Ct. 1164 (internal quotation marks omitted). The HDL does not “merely repackage[] or republish[] the original[s],” Leval, 103 at 1111, or merely recast “an original work into a new mode of presentation,” Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 143 (2d Cir.1998). Instead, by enabling full-text search, the HDL adds to the original something new with a different purpose and a different character.

Full-text search adds a great deal more to the copyrighted works at issue than did the transformative uses we approved in several other cases. For example, in Cariou v. Prince, we found that certain photograph collages were transformative, even though the collages were cast in the same medium as the copyrighted photographs. 714 F.3d at 706. Similarly, in Bill Graham Archives v. Dorling Kindersley Ltd., we held that it was a transformative use to include in a biography copyrighted concert photos, even though the photos were unaltered (except for being reduced in size). 448 F.3d 605, 609–11 (2d Cir.2006); see also Blanch v. Koons, 467 F.3d 244, 252–53 (2d Cir.2006) (transformative use of copyrighted photographs in collage painting); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 114 (2d Cir.1998) (transformative use of copyrighted photograph in advertisement).

Cases from other Circuits reinforce this conclusion. In Perfect 10, Inc., the Ninth Circuit held that the use of copyrighted thumbnail images in internet search results was transformative because the thumbnail copies served a different function from the original copyrighted images. 508 F.3d at 1165; accord Arriba Soft Corp., 336 F.3d at 819. And in ''A.V. ex rel. Vanderhye v. iParadigms, LLC'', a company created electronic copies of unaltered student papers for use in connection with a computer program that detects plagiarism.