Last time, we talked about how the courts in the Google Books and HathiTrust decisions saw public benefit playing into fair use.  One of the clear benefits of both projects is expanding access to works to the blind and print-disabled. Both Google Books and the  HathiTrust Digital Library allow first-time access to many of the world’s books and research materials to blind and print-disabled people.  This is unquestionably a good thing.  Congress had thought so when it enacted the Chaffee Amendment, (17 U.S.C. 121) which says that it is not an infringement for “authorized entities” to offer previously published works in specialized formats to the blind .  The Chaffee Amendment was an agreement between the American Association of Publishers and the National Federation of the Blind, and others, that folks who were making “specialized formats” of works – braille and audio copies that played only on specialized players – could do so without permission from the publishers.  The publishers agreed to it – everybody wanted to help get books to blind people without the slowdown of the permissions process.  But after HathiTrust, the Chaffee Amendment is dead.  We don’t need it anymore, because now offering works to the blind is fair use.
The Court says that offering works to the blind is fair use because (a) there is legislative history behind the 1976 Copyright Act that states that “the making of a single copy or phonorecord by an individual as a free service for a blind person would properly be considered a fair use under section 107;” and (b) Congress meant for it to be so because it passed the Americans with Disabilities Act and the Chafee Amendment.
So the Chafee Amendment is unnecessary because making works available to the blind is fair use, and it is fair use because the Chafee Amendment.
The Chafee Amendment would have required the defendants to prove that they were “authorized entities,” having as a “primary mission” to provide specialized services to the disabled.  It is quite possible that the Court wished to spare Google that possibly significant hurdle in the upcoming appeal. It is also possible that the Court wished to lift the restriction in the Chafee Amendment that allows only access to previously published material.  Often times Courts have to wait for Congress to enact their suggestions; but in this case, the Second Circuit evidently felt that it had the ability to use a better, older statute to simply kill the one that it didn’t like.  So why wait?
Because declaring that making works accessible to the blind is per se fair use  is firing the race gun for who can put out ALL THE BOOKS in blind-accessible format (hint: Google), and screw what format it is in, whether they charge for it and give any of those fees back to the rightsholder.  The Second Circuit’s holding blows the door wide open for all manner of commercial exploitation of other people’s material in the name of helping the blind. It  In the end, the blind get access to more books.  This, I repeat, is a good thing.
But what happens when a new company springs up to turn ALL THE BOOKS into audiobooks? (Okay, that would take a long time, so maybe just Some Of The Books). The blind probably love audiobooks.  So do the rest of us.  This new company makes a ton of money selling audiobooks, primarily to the blind but also to the sighted.  Can that company rely on the HathiTrust decision to say that they don’t have to comply with the Chaffee Amendment because everything they did was fair use, as long as their “primary market” is to the blind?  If I were their lawyer, I’d probably argue that. No specialized format requirement, no authorized entity loopholes, and selling to the blind is so very fair use that you can make money on it and keep it all!  Sounds like a pretty good business model to me.
The Chafee Amendment didn’t give blind people all the works, just the ones that a few hard-working people turned into braille or recorded in specialized format for a small but deserving segment of the population. Section 121 wasn’t really prepared for the likes of Google.  But it didn’t deserved to be shot through the heart for it.

Tara Aaron

Tara helps clients across multiple industries and countries with licenses and disputes involving trademarks, copyrights, domain names, software, trade secrets, and privacy compliance. She earned her Certified Information Privacy Professional (CIPP) in U.S. Privacy Law in 2018 and in European Data Protection Law in 2019. Her clients include many technology start-ups, software developers, and website designers as well as long-standing institutional clients who come to her for representation in copyright, trademark, licensing and privacy. She also assists with the purchase and sale of intellectual property assets. She has on multiple occasions successfully obtained hijacked domain names for the rightful owners, and regularly negotiates service and technology agreements with the largest telecommunications and software providers in the country.