Page:Authors Guild v. HathiTrust (2014).pdf/12

 Even though the electronic copies made no “substantive alteration to” the copyrighted student essays, the Fourth Circuit held that plagiarism detection constituted a transformative use of the copyrighted works. 562 F.3d 630, 639–40.

The second fair-use factor—the nature of the copyrighted work—is not dispositive. The HDL permits the full-text search of every type of work imaginable. Consequently, there is no dispute that the works at issue are of the type that the copyright laws value and seek to protect. However, “this factor ‘may be of limited usefulness where,’ as here, ‘the creative work … is being used for a transformative purpose.’ ” Cariou, 714 F.3d at 710 (quoting Bill Graham Archives, 448 F.3d at 612). Accordingly, our fair-use analysis hinges on the other three factors.

The third factor asks whether the copying used more of the copyrighted work than necessary and whether the copying was excessive. As we have noted, “[t]here are no absolute rules as to how much of a copyrighted work may be copied and still be considered a fair use.” Maxtone-Graham v. Burtchaell, 803 F.2d 1258, 1268 (2d Cir.1986). “[T]he extent of permissible copying varies with the purpose and character of the use.” Campbell, 510 U.S. at 586–87, 114 S.Ct. 1164. The crux of the inquiry is whether “no more was taken than necessary.” Id. at 589, 114 S.Ct. 1164. For some purposes, it may be necessary to copy the entire copyrighted work, in which case Factor Three does not weigh against a finding of fair use. See Bill Graham Archives, 448 F.3d at 613 (entire image copied); Arriba Soft, 336 F.3d at 821 (“If Arriba only copied part of the image, it would be more difficult to identify it, thereby reducing the usefulness of the visual search engine.”).

In order to enable the full-text search function, the Libraries, as we have seen, created digital copies of all the books in their collections. Because it was reasonably necessary for the HDL to make use of the entirety of the works in order to enable the full-text search function, we do not believe the copying was excessive.

The Authors also contend that the copying is excessive because the HDL creates and maintains copies of the works at four different locations. Appellants’ Br. 27–28. But the record demonstrates that these copies are also reasonably necessary in order to facilitate the HDL’s legitimate uses. In particular, the HDL’s services are offered to patrons through two servers, one at the University of Michigan (the primary server) and an identical one at the University of Indiana (the “mirror” server). Both servers contain copies of the digital works at issue. According to the HDL executive director, the “existence of a[n] [identical] mirror site allows for balancing the load of user web traffic to avoid overburdening a single site, and each site acts as a back-up of the HDL collection in the event that one site were to cease operation (for example, due to failure caused by a disaster, or even as a result of routine maintenance).” J.A. 682–83 ¶88–89 (Wilkin Decl.). To further guard against the risk of data loss, the HDL stores copies of the works on two encrypted backup tapes, which are disconnected from the internet and are placed in