Have you heard of the “first sale doctrine?” You’ve likely heard (if you’re a District Dispatch subscriber) about the Supreme Court case Kirtsaeng v. Wiley & Sons, and that it might affect library lending. However, the details of the case about a student lawfully importing textbooks into the U.S. and then selling them on eBay are seemingly complex and technical. The Library Copyright Alliance has published a one-page summary, “First Sale Fast Facts for Libraries,” that provides you key information to understand the first sale doctrine and what is at stake in the Kirtsaeng case.
Additional information on the case is available at ALA’s First Sale Doctrine and Kirtsaeng v. Wiley & Sons, Inc.
Also, the ALA is a founding member of the Owners’ Rights Initiative, a diverse coalition of businesses, associations and organizations that have joined together to protect first sale rights in the United States.
On Monday, January 14, 2013, the Library Copyright Alliance (LCA) (whose members are the American Library Association, Association of Research Libraries and Association of College and Research Libraries) filed comments (pdf) with the U.S. Copyright Office in response to their October 22, 2012, Notice of Inquiry about the current state of play with orphan works and mass digitization.
The Office is seeking comments regarding “what has changed in the legal and business environments during the past few years that might be relevant to a resolution of the problem and what additional legislative, regulatory, or voluntary solutions deserve deliberation.”
In its comments, LCA explains that “significant changes in the copyright landscape over the past seven years convince us that libraries no longer need legislative reform in order to make appropriate uses of orphan works.” Specifically, two key developments make it possible for libraries to engage in mass digitization and other projects that involve orphan works:
- Court decisions have further solidified libraries’ rights under fair use; and
- Libraries have successfully engaged in a range of projects involving orphan works and mass digitization.
While other communities may prefer greater certainty concerning what steps they would need to take to fall within a safe harbor, libraries can rely on their existing rights, including fair use. If Congress does consider legislation, LCA suggests that Congress abandon the overly complex arrangement it arrived at in 2008 and instead make a simple one sentence amendment to the Copyright Act giving courts the discretion to reduce or remit statutory damages in appropriate circumstances.
LCA also submitted to the Copyright Office a stand-alone policy statement on the kind of copyright reform that could benefit libraries. Originally published by LCA in May 2011, the statement emphasizes the same fundamental principles as the LCA comments: confident reliance on fair use and related rights together with the suggestion of simple reform focused on limiting remedies against libraries acting in good faith.
LCA encourages librarians and libraries to submit comments, which are due February 4, 2013, and can be submitted online at http://www.copyright.gov/orphan/.
The Library Copyright Alliance (LCA) has issued the following statement regarding the appeal filed yesterday by the Authors Guild in its lawsuit against the HathiTrust and five partner libraries:
We are deeply disappointed by the Authors Guild’s decision to appeal Judge Baer’s landmark opinion acknowledging the legality, and the extraordinary social value, of the HathiTrust Digital Library. Libraries have a moral and a legal obligation to provide the broadest possible access to knowledge for all of our users, and the HathiTrust and its partners have assembled an invaluable digital resource that will ensure for the first time that library print collections can be made available on equitable terms to our print-disabled users. The database also facilitates preservation and cutting-edge scholarship, all with no harm to authors or publishers. As we predicted, Judge Baer did not look kindly on the Guild’s shortsighted and ill-conceived lawsuit, saying, “I cannot imagine a definition of fair use that…would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA.” If there is an upside to this misguided appeal, it is that the Second Circuit will now have the opportunity to affirm that powerful insight.
For more information on the two amicus curiae or friend of the court briefs filed by the LCA in the HathiTrust case, please visit http://www.librarycopyrightalliance.org/submissions/domestic/amicus.shtml.
The Library Copyright Alliance (LCA) consists of three major library associations—the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries. These three associations collectively represent over 300,000 information professionals and thousands of libraries of all kinds throughout the United States and Canada. Find LCA on the web at http://librarycopyrightalliance.org/.
If you haven’t yet heard, on October 10, 2012, U.S. District Court Southern District of New York Judge Baer ruled in the Authors’ Guild, Inc, et al. v. HathiTrust, et al. At the heart of the case was the Authors’ Guild’s (AG) assertion that the HathiTrust Digital Library’s (HDL) scanning and digitizing of works from several universities for inclusion into a digital library that allowed full-text searches, preservation of digitized works, and access for people with print disabilities violated copyright law.
The cliff notes version of the judge’s ruling is he flat-out disagrees with the Authors’ Guild. Yep, you read right. Libraries’ scanning and digitizing works to make them available via the HDL is fair use. Searching the full-text of works is fair use. Preserving the digitized works is fair use. Providing access to digitized works via the HDL to people with print disabilities is fair use. Jonathan Band, the American Library Association’s (ALA) and Library Copyright Alliance’s (LCA) legal consultant and copyright expert, has written an excellent statement in response to the judge’s ruling.
In addition, many others have weighed in on the judge’s ruling including, but not limited to:
And, so what about those orphaned works anyway? The plaintiffs made a big hubbub about the potential for orphans (those works whose copyright holder can’t be identified or found) to be included in the HDL. Ultimately, the judge’s ruling has no real effect – as he notes in his opinion under section D. Ripeness of the Orphan Works Project,
The Complaint requests a declaration that the “distribution and display of copyrighted works through the HathiTrust Orphan Works Project [OWP] will infringe the copyrights of Plaintiffs and others likely to be affected” and an injunction that prohibits the OWP…Plaintiffs seek a ruling on the OWP as it will exist, and not specifically as it existed at the moment that the initial complaint was filed….Adjudication as to the OWP is not ripe for judicial review.
However, that didn’t stop the Authors’ Guild from focusing on orphans in their public response to the judge’s ruling.
So, where does this ruling leave us – meaning libraries and the public? In very good form! Three cheers for fair use!
The Library Copyright Alliance (LCA) welcomes Judge Baer’s decision (pdf) yesterday that the HathiTrust Digital Library’s (HDL) use of digitized works is a fair use permitted under the Copyright Act. Judge Baer’s key holding was:
I cannot imagine a definition of fair use that would not encompass the transformative uses made by [HDL] and would require that I terminate this invaluable contribution of the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA.
Judge Baer’s ruling not only allows HathiTrust to continue serving scholars and the print disabled, but it also provides helpful guidance on how future library services can comply with copyright law.
The HathiTrust Digital Library is operated by a consortium of universities, including the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University. Many of the 10 million digital volumes in HDL were provided by Google in exchange for the universities’ allowing Google to scan books in their collections for the Google Library Project. The Library Project is the subject of two separate cases, one of which settled last week. HDL is used in three ways: full-text searches; preservation; and access for people with print disabilities. HathiTrust was sued by the Authors Guild (AG) and several other authors’ associations in 2011.
Judge Baer cited the two amicus briefs that LCA filed in this case. First, when rejecting the AG’s contention that the library exceptions in section 108 somehow limit the fair use privilege in section 107, Judge Baer stated that the LCA brief “further convince[s] me that fair use is available as a defense for the Defendants.” Then, when balancing the fair use factors, Judge Baer observed that the LCA brief “further confirm[s] that the underlying rationale of copyright law is enhanced” by the HDL.
Judge Baer made numerous helpful holdings:
- An association does not have standing under the Copyright Act to bring infringement suits on behalf of its members.
- As noted above, the library specific exceptions in section 108 do not restrict the availability to libraries of fair use under section 107.
- The creation of a search index is a transformative use under the first fair use factor: “The use to which the works in HDL are put is transformative because the copies serve an entirely different purpose that than the original works: the purpose is superior search capabilities rather than actual access to copyrighted material.”
- The use of digital copies to facilitate access for the print-disabled is also transformative. Because print-disabled persons are not a significant potential market for publishers, providing them with access is not the intended use of the original work.
- The AG failed to show that HDL created any security risks that threatened AG’s market.
- AG’s suggestion that HDL undermines existing and emerging licensing opportunities is “conjecture.”
- The goals of copyright to promote the progress of science are better served by allowing HDL’s use than by preventing it.
- The University of Michigan is an authorized entity under the Chafee Amendment, 17 USC 121, because it has “a primary mission” to provide access for print-disabled individuals.
- The Americans with Disabilities Act “requires that libraries of educational institutions…reproduce and distribute their collections to print-disabled individuals.”
The Library Copyright Alliance (LCA) consists of three major library associations—the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries. These three associations collectively represent over 300,000 information professionals and thousands of libraries of all kinds throughout the United States and Canada.