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by | Apr 23, 2012 | 0 comments

LCA Files Amicus Brief in Author’s Guild vs HathiTrust

The Library Copyright Alliance* has filed an amicus brief against the Authors Guild motion for preliminary judgment against HathiTrust claiming that the plaintiffs (Authors Guild) “advances a radical and unprecedented interpretation of 17 U.S.C. § 108 that threatens the most routine library operations.”  According to the LCA brief;

 “When Congress enacted Section 108 in 1976, it provided libraries with a specific set of limitations on copyright liability that addressed some—but certainly not all—of the activities engaged in by libraries at that time. For example, Section 108 did not provide an exception to the Section 106(3) distribution right that would allow libraries to lend the books and other material in their collections. Rather, the first sale doctrine, codified at Section 109(a), allowed any owner of a lawfully made copy—including a library—to sell or lend that copy without infringing the distribution right.  Nonetheless, Plaintiffs argue that Section 108 defines the boundaries of permissible reproduction and distribution by libraries. They seek to convert an exception intended to benefit libraries into a regulation that restricts libraries. In particular, Plaintiffs assert that Section 108 limits the availability of the fair use right to libraries. They take this position notwithstanding the plain language of Section 108(f)(4) that nothing in Section 108 “in any way affects the right of fair use as provided by section 107….”

 

The brief goes in to assert that:

“Under Plaintiffs’ reading of Section 108, libraries could no longer rely on the first sale doctrine to permit the more than four billion circulation transactions that occur annually. Libraries could not invoke the fair use right to allow the reproductions incidental to libraries providing Internet access to more than 70 million Americans. Plaintiffs’ interpretation of Section
108 also would prevent libraries from engaging in a wide range of other activities such as the exhibition of photographs, the preservation of musical works and motion pictures, the archiving of websites, and the reproduction of multiple copies of articles for classroom use.”

 

The amicus brief divides the LCA’s full argument as follows:

I. PLAINTIFFS’ READING OF SECTION 108 WOULD PROHIBIT LIBRARIES FROM FULFILLING THEIR MISSION

A. Plaintiffs’ Interpretation of Section 108 Would Prevent Libraries From Lending Books and Other Materials To The Public
B. Plaintiffs’ Understanding of Section 108 Would Prevent Libraries From ProvidingInternet Access to User
C. Plaintiffs’ Reading of Section 108 Precludes Many Other Important Library Activities

 

II. PLAINTIFFS’ INTERPRETATION OF SECTION 108 CONFLICTS WITH THE STRUCTURE OF THE COPYRIGHT ACT AND ITS PLAIN LANGUAGE

A. The Copyright Act’s Specific Exceptions Do Not Limit the Applicability of Fair Use
B. Section 108(f)(4) Unambiguously Provides that Section 108 Does Not Limit The Applicability of Fair Use to Libraries
C. Plaintiffs’ Reading of Section 108 Conflicts with Section 504(c)(2)
D. Plaintiffs’ Interpretation of Section 108 Is Inconsistent With the Privileged Status Congress Has Accorded Libraries In Title 17

 

III. THE ORPHAN WORKS PROJECT IS PERMITTED BY SECTION 108(e)

IV. CONCLUSION

* The Library Copyright Alliance members include the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries.

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