This article has been edited to clarify the Guild’s position.
In the ongoing litigation between the Hathi Trust and the Author’s Guild over the Trust’s book digitization in partnership with Google, the Guild filed for partial judgment on the pleadings on February 28. In essence, the Guild claimed that the Trust and five of its 60 member libraries and institutions are infringing because some of their book digitization activities “are wildly exceeding” those defined in section 108 of the 1976 Copyright Act. (Despite the involvement of Google, this case is separate from the Guild’s long-running lawsuit against Google Books.)
But while the Hathi Trust has not yet filed its response, library advocates are already contesting the Guild’s assertion on several grounds, including the “savings clause” of section 108, which explicitly states that nothing in section 108 “in any way affects the right of fair use as provided by section 107.”
James Grimmelmann, associate professor, New York Law School said in his blog, “The only way the Authors Guild can get around the enormously high factual burden facing it at this procedural stage is to make a purely legal argument: that failure to comply with Section 108 categorically prevents reliance on fair use, across the board, no factual questions asked. But here, even its own sources betray it.” The 1983 Copyright Office report cited by the Guild says that fair use is “often”, but not “always”, unavailable as a defense.
And as ARL policy blogger Brandon Butler points out, even if that report had conclusively backed the Guild’s position, the court owes no special deference to Copyright Office reports at all, unless it finds their arguments convincing on their own merits.
Kevin Smith, Duke University’s scholarly communications officer, said of the Guild’s filing: “The memorandum strikes me as a masterpiece of misdirection, trying to make plausible arguments that do not quite fit the actual case in front of the judge. The problem is that if the judge accepts these arguments, it could be devastating for libraries…Whatever the ultimate decision about fair use may be, the defendants must be allowed to argue it if the structure of US copyright law is not to be grossly undermined.”
For a sample of some arguments the defendants might use to do so, see Jonathan Band’s memo on the orphan works aspect of the Trust’s activities.
Meanwhile, perhaps as a show of support, Harvard Library announced on March 6 that it would deposit about 200,000 public domain volumes in HathiTrust, on top of the roughly 53,000 volumes Harvard deposited in 2011.
“Partnerships like this create significant opportunities for research libraries to lead during a period of rapid changes in higher education and scholarship in the digital age, and for researchers to benefit from their initiative,” said Mary Lee Kennedy, Harvard’s senior associate provost for the library.