RLI 285  9 RESEARCH LIBRARY ISSUES: A REPORT FROM ARL, CNI, AND SPARC 2015 HathiTrust decision on this basis. At the same time, this panel did not suggest that snippet display renders GBS unfair. This panel simply left the question open for the GBS panel. Accordingly, we will have to wait until the decision in the GBS case to know whether Judge Chin’s holding permitting snippet display stands. The court also did not resolve the issue of HDL’s creation of a replacement copy “to be read and consumed by patrons” in the event a library’s original copy is lost or destroyed. The court labeled this as a preservation use, and found that the plaintiffs may not have had standing to bring a claim related to this specific use. On this basis, the Second Circuit vacated the district court’s judgment related to this use, and remanded the claim to the district court to determine whether any of the plaintiffs in fact had standing. On December 23, 2014, the parties signed a stipulation under which the plaintiffs dismissed this claim based on the defendant libraries’ representation that they only made replacement copies from HDL where (i) the original copy that was being replaced was damaged, deteriorating, lost, or stolen and (ii) it was determined, after reasonable effort, that an unused replacement could not be obtained at a fair price. 3. Suggestions Concerning Other Forms of Access The HathiTrust decision could be read as suggesting that the display of thumbnails of digitized images (e.g., digitized archives of photographs) would be permissible. In support of the position that full-text search is a transformative use, the court cited two Ninth Circuit decisions that held that “the use of copyrighted thumbnail images in internet search results was transformative because thumbnail copies served a different function from the original copyrighted images.”10 The court’s more general fair use pronouncements could also assist libraries in determining what access to allow to their digitized copies. As the fair use jurisprudence has placed greater emphasis on whether a use is “transformative,” rights holders have argued that the work itself had to be transformed in some manner for the use to be transformative. They pointed to parody as the quintessential transformative use.11 In contrast, defendants have asserted that a use could be transformative if the use served a different purpose or function from the original, even if the work itself was not transformed. The copying of student papers for use by plagiarism-detection software is an example of this sort of use.12 In this case, the Authors Guild argued that the other circuits that had adopted this “functional transformation” approach had erred, that the Second Circuit itself had not adopted this approach,13 and that the Second Circuit should not follow the other circuits. Fortunately, the Second Circuit rejected the Authors Guild’s assertion, finding that “a transformative work is one that serves a new and different function from the original work and is not a substitute for it.”14 The court elaborated that “a use is transformative if it does something more than repackage or republish the original work.”15 Because authors do not write with the purpose of enabling text searches of their books, the full-text search function does not “supersede the objectives or purposes of the original creation.”16 The court added that “by enabling full-text search, the HDL adds to the original something new with a different purpose and a different character.”17
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