Above the Law – Fair use is for everyone and benefits rightholders just as it benefits consumers. “A common misconception about fair use in copyright law is that it is relied upon solely by consumers. The reality, however, is that everyone uses fair use, including large rightholders like movie studios and publishers. Even while rightholders are often seen as advocates for strong intellectual property rights, even while they oppose fair use when bringing a lawsuit themselves, they are not shy in asserting their own right to fair use…”

While publishers took a dim view of fair use when libraries were creating own searchable database (and providing accessible copies for people who are blind or print disabled), they raised fair use as a defense in the creation of a publisher-owned database. In White v. West Publishing (litigation that happened at the same time as HathiTrust), two attorneys — Edward White and Kenneth Elan — claimed copyright infringement after West Publishing and Reed Elsevier ingested legal briefs written by these attorneys into their Westlaw and Lexis databases. The databases converted the legal documents into text-searchable electronic files and tagged it with metadata to allow the users to find and retrieve the documents more easily and included links to other filings in related cases and links to authorities cited. Anyone who has gone to law school understand the benefit of these online searchable databases and the content within them serve a much different purpose than the one for which they were originally created. The publishers noted in their filings that fair use is a “necessary tool to further the goals of copyright law” and successfully relied on this doctrine in the creation of its database…”