Keep in mind that fair use is not a privilege. It is instead an affirmative defense to an accusation of infringement. (Unfortunately, neither the statute nor the courts are very consistent in treating it as such.) The burden of proving an affirmative defense is on the party asserting the defense; this is one of the many "the tie goes to the runner" principles common in American jurisprudence.
In any event, let's take a fresh look at the way the fair use defense applies to each of the three potential violations that the Author's Guild should have alleged.
| (1) Scanning, Copying, and Storing | (2) Searchable Index | (3) Retrieval Upon Hit | |
|---|---|---|---|
| i. Purpose & character of use | Weighs against fair use, especially under Tasini | Indeterminate; an index is a derivative work (and therefore weighs against fair use), but certain indexing methods would mitigate this determination; whether a textual index of a textual work is "transformative" is highly doubtful under Second Circuit law | Indeterminate |
| ii. Nature of source work | Variable; for works of fiction, weighs against fair use, but a narrower question for nonfiction | Indeterminate; an index for a work of fiction makes little sense for general usage, but an index to a work of nonfiction does make sense | Indeterminate, but probably weighs slightly in favor of fair use for limited extracts (but heavily against fair use for many large values of "limited") |
| iii. Amount and substantiality | Copying the whole work weighs strongly against fair use; as a whole-work copy, this factor should get the greatest weight | Indeterminate; unlike Arriba Soft, the index of textual terms is more likely to provide the user information information needed to evaluate the work, but less likely to be useful without substantial copying under Nation Enters. | Indeterminate; slightly against fair use for collective works and anthologies, but slightly favors fair use for single-work books |
| iv. Effect on market | Speculative at best, although anticipated changes in market conditions make this factor weigh narrowly against fair use | Unlikely to have any effect, although indexing seldom has any measurable effect on the market in print publishing | Slightly favors fair use for nonfiction, indeterminate for fiction and drama |
| On Balance | Solidly against fair use | Indeterminate—and therefore fails as an affirmative defense | For most subject works, slightly against fair use; at best, indeterminate to slightly favoring fair use for other classes of works11 |
Admittedly, this doesn't look a whole lot like the analysis in Arriba Soft. That is primarily because, as I've tried to make clear, this case isn't Arriba Soft. It is not being heard in the Ninth Circuit, which (along with the Eleventh Circuit) has the least-stringent view of fair use; it is not based on materials merely gathered, but for which substantial and conscious copying must occur for any of the three "uses"; it is not based upon reuse of materials in exactly the same form, medium, and purpose/function as provided by the copyright holder; and does not concern a well-delineated final use and presentation.
Perhaps most importantly, though, that this case is being heard in the Second Circuit matters for a procedural reason: Second Circuit law on affirmative defenses in general is somewhat less favorable to defendants engaged in knowing and purposeful acts. That is, the nature of fair use as an affirmative defense matters more in the Second Circuit than it does in the Ninth Circuit (or would in the Sixth, Eighth, or Eleventh Circuits). Put another way, the umpires in the Second Circuit seem less appreciative of the well-turned, but close, double play than do those in the Ninth Circuit.
- This particular cell demonstrates another reason that a class action may not be manageable: It will require a work-by-work inquiry. Although that is not by itself disqualifying, the rather indistinct nature of a fair number of literary works at the University of Michigan Library indicates that for at least a nontrivial number of works, this will require a fairly intensive factual inquiry.