April 26, 2012
LCA Files Amicus Brief in Authors Guild Case Against the HathiTrust
The Library Copyright Alliance (LCA) has filed an amicus brief in the lawsuit between the Authors Guild and the HathiTrust. It comes at a time when there is a pending motion for judgment on the pleadings. The conduct of the parties is not in dispute. The real question is the interpretation of the Copyright Act as applied to that conduct. The Authors Guild lays out its argument on the basis of the language of §108 of the Act which defines some of the archival functions of a library. The Guild’s position is that the wholesale copying of works, even orphan works, falls outside the scope of the statute.
The LCA brief notes §108(f)(4) limits the application of the section in that it does not affect any fair use options for libraries. The brief also makes the point that another section of the Act, §504(c)(2) protects libraries from statutory or other damages in circumstances where they believe the infringing activity was fair use. The best the Guild may get is an order to stop copying and making available digital copies if this section applies.
Essentially, the Guild would not want any wholesale copying of orphan works to be considered fair use and is doing its best to argue that only the text of §108 applies to this case. The HathiTrust and LCA are still claiming fair use. I think the statutory language cited suggests fair use comes into play. Whether the copying is fair use is another question. I’m hoping that it is. We’ll see. Hints from the docket sheet suggest that a ruling will come sometime after May 20th. A copy of the LCA brief is here. [MG]