On April 20 the Hathi Trust filed a motion opposing the Author’s Guild’s latest move in the ongoing lawsuit between the two, in which the Guild filed for partial judgment on the pleadings on February 28.
The Trust said the Guild’s argument defied common sense as well as Congressional intent in denying that libraries, like anyone else, can mount a fair use defense to an allegation of copyright infringement as well as one based on Section 108. The Trust also argued that the Guild has not shown that there is no issue of fact or law for the court to decide, which is the standard for partial judgment on the pleadings.
In addition the Association of Research Libraries, the American Library Association, and the Association of College and Research Libraries filed a friend of the court brief authored by Jonathan Band. Said Band, “Plaintiffs advance a radical and unprecedented interpretation of 17 U.S.C. § 108 that threatens the most routine library operations. …They seek to convert an exception intended to benefit libraries into a regulation that restricts libraries.”
Band further contends that The Library of Congress, home to the Copyright Office itself, has already done more with and to its own orphan works holdings than the HathiTrust intends to do in its own orphan works program.
In the meantime, the Hathi Trust is exploring other ways to add more undisputed content. Together with the HathiTrust team, MPublishing is developing a new modular, open source platform for open access journal publishing called jPach, which will allow MPublishing to publish journal content directly into the HathiTrust repository.