Page:Authors Guild v. HathiTrust (2014).pdf/16

 necessary for a finding of fair use.’ ” ''Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73, 84, 2014 WL 2219162, at *7 (2d Cir.2014) (quoting Campbell'', 510 U.S. at 579, 114 S.Ct. 1164). We conclude that providing access to the print-disabled is still a valid purpose under Factor One even though it is not transformative. We reach that conclusion for several reasons.

First, the Supreme Court has already said so. As Justice Stevens wrote for the Court: “Making a copy of a copyrighted work for the convenience of a blind person is expressly identified by the House Committee Report as an example of fair use, with no suggestion that anything more than a purpose to entertain or to inform need motivate the copying.” Sony Corp. of Am., 464 U.S. at 455 n. 40, 104 S.Ct. 774.

Our conclusion is reinforced by the legislative history on which he relied. The House Committee Report that accompanied codification of the fair use doctrine in the Copyright Act of 1976 expressly stated that making copies accessible “for the use of blind persons” posed a “special instance illustrating the application of the fair use doctrine….” H.R. Rep. No. 94-1476, at 73 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5686. The Committee noted that “special [blind-accessible formats] … are not usually made by the publishers for commercial distribution.” Id. In light of its understanding of the market (or lack thereof) for books accessible to the blind, the Committee explained that “the making of a single copy or phonorecord by an individual as a free service for a blind persons [sic] would properly be considered a fair use under section 107.” Id. We believe this guidance supports a finding of fair use in the unique circumstances presented by print-disabled readers.

Since the passuge of the 1976 Copyright Act, Congress has reaffirmed its commitment to ameliorating the hardships faced by the blind and the print disabled. In the Americans with Disabilities Act, Congress declared that our “Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.” 42 U.S.C. § 12101(7). Similarly, the Chafee Amendment illustrates Congress’s intent that copyright law make appropriate accommodations for the blind and print disabled. See 17 U.S.C. § 121.

Through the HDL, the disabled can obtain access to copyrighted works of all kinds, and there is no dispute that those works are of the sort that merit protection under the Copyright Act. As a result, Factor Two weighs against fair use. This does not preclude a finding of fair use, however, given our analysis of the other factors. Cf. Davis v. Gap, Inc., 246 F.3d 152, 175 (2d Cir.2001) (“The second statutory factor, the nature of the copyrighted work…, is rarely found to be determinative.”).

Regarding Factor Three, as previously noted, the HDL retains copies as digital image files and as text-only files, which are then stored in four separate locations. The Authors contend that this amount of copying is excessive because the Libraries have not demonstrated their need to retain the digital image files in addition to the text files.

We are unconvinced. The text files are required for text searching and to create text-to-speech capabilities for the blind and disabled. But the image files will provide an additional and often more