RLI 285  12 RESEARCH LIBRARY ISSUES: A REPORT FROM ARL, CNI, AND SPARC 2015 if the libraries provide full-text search functionality and full-text access for disabled individuals. With respect to full-text access for the non-disabled outside of the library premises, the court ruled that a use could be transformative if the function or purpose of the use is different from that of the original work. This holding could reasonably be interpreted as permitting full-text access to most digitized archival material (except some popular entertainment materials). Full-text access to certain categories of digitized books, e.g., older books in certain scientific fields or books that are infrequently circulated, may also be permitted. Further discussion between librarians and scholars may lead to other approaches that could provide a basis for allowing full-text access to additional books. Endnotes 1 775 F.3d at 94, n. 4. 2 Id. at 98. 3 Id. at 102–03. 4 The Second Circuit did not address the temporary copies made within the HathiTrust servers during the course of performing a search. Presumably the court considered these temporary copies to be so temporary as to not be copies within the meaning of the Copyright Act, see Cartoon Network v. CSC Holdings, 536 F.3d 121 (2nd Cir. 2008) or fair uses, see Perfect 10 v. Amazon.com, 508 F.3d 1146 (9th Cir. 2007). It is safe to assume that the court would also view any temporary copies made during the course of other “non-consumptive” uses of the database, such as text mining, as non-infringing. 5 Id. at 103. 6 Id. 7 Id. 8 Id. 9 Id. at 97. 10 Id. at 97. 11 See Campbell v. Acuff-Rose, 510 U.S. 569 (1994). 12 See A.V. ex rel. Vanderhye v. iParadigms, 562 F.3d 630 (4th Cir. 2009). 13 The Second Circuit had, in fact, already recognized functional transformation in Bill Graham Archives v. Dorling Kindersley, 448 F.2d 605 (2d Cir. 2006). 14 HathiTrust at 96. 15 Id. 16 Id. at 97.
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