According to an article by Andrew Albanese in Publishers Weekly, the Authors Guild vs. Google case is on the Supreme Court's calendar for its April 1 conference.
See also: "After Latest Filings, Google Case Now in Supreme Court's Hands."
Category: Mass Digitizaton
"Help the Copyright Office Understand How to Address Mass Digitization"
The DPLA has published "Help the Copyright Office Understand How to Address Mass Digitization" in the DPLA Blog.
Here's an excerpt:
The U.S. Copyright Office recently issued a report and a request for comments on its proposal for a new licensing system intended to overcome copyright obstacles to mass digitization. While the goal is laudable, the Office's proposal is troubling and vague in key respects.
The overarching problem is that the Office's proposal doesn't fully consider how libraries and archives currently go about digitization projects, and so it misidentifies how the law should be improved to allow for better digital access. It's important that libraries and archives submit comments to help the Office better understand how to make recommendations for improvements.
"5 Million Public Domain Ebooks in HathiTrust: What Does This Mean?"
Rick Anderson has published "5 Million Public Domain Ebooks in HathiTrust: What Does This Mean?" in The Scholarly Kitchen.
Here's an excerpt:
A week or so ago, a monumental thing happened: the number of public-domain books in the HathiTrust digital repository topped 5 million. And since no one (including HathiTrust, so far) seems to be making a very big deal about this, it seems like a good moment both to recap the achievements of HathiTrust and to consider a few of its implications for the future of reading and scholarship.
"EFF Urges Appeals Court to Keep Protecting Fair Use"
EFF has released "EFF Urges Appeals Court to Keep Protecting Fair Use."
Here's an excerpt:
In this latest appeal, the Authors Guild (and its supporters) claim that fair use is being unjustly expanded, portraying Judge Chin's ruling and other recent court opinions as some kind of fair-use creep, stretching beyond the original intent of the doctrine. Specifically, the Guild argues that the first of the four statutory fair use factors—the purpose of the use, which asks whether the use of the copyrighted material is transformative and/or non-commercial—weighs against Google. The Authors Guild and its amici insist that a use cannot be transformative if it doesn't add new creative expression to the pre-existing work. But as Judge Chin so rightly recognized, a use can be transformative if serves a new and distinct purpose.
Digital Scholarship | "A Quarter-Century as an Open Access Publisher"
What Does the HathiTrust Decision Mean for Libraries?
The Library Copyright Alliance has released What Does the HathiTrust Decision Mean for Libraries?.
Here's an excerpt:
The decision also demonstrates how the fair use right applies in the context of a specific library activity: mass digitization. The decision clearly indicates that the acts of a library digitizing the works in its collection, and the library's storage of the resulting digital files, are fair uses under section 107 of the Copyright Act. The decision, however, provides less certainty concerning the permissible access to those digital files. The only form of full-text access it addresses directly is access by the disabled. To be sure, this is an incredibly important result for these individuals. But the court provides little specific guidance concerning the permissibility of other forms of access. Nonetheless, the court's more general pronouncements concerning fair use should be helpful to libraries trying to determine the range of permitted access to their mass digitization projects.
Digital Scholarship | "A Quarter-Century as an Open Access Publisher"
EU Advocate General Issues Opinion on Library Digitization
The European Union's Advocate General has issued an opinion on library digitization.
Here's an excerpt from the announcement:
Here's an excerpt:
Next, the Advocate General considers that the directive does not prevent Member States from granting libraries the right to digitise the books from their collections, if their being made available to the public by dedicated terminals requires it. That may be the case where it is necessary to protect original works which, although still covered by copyright, are old, fragile or rare. That may also be the case where the work in question is consulted by a large number of students and its photocopying might result in disproportionate wear.
However, Mr Jääskinen makes clear that the directive permits not the digitisation of a collection in its entirety, but only the digitisation of individual works. It is particularly important not to opt to use dedicated terminals where the sole purpose of doing so is to avoid the purchase of a sufficient number of physical copies of the work.
Digital Scholarship | Digital Scholarship Publications Overview | Sitemap
Copyright Office Seeks Comments on Orphan Works and Mass Digitization
The US Copyright Office is seeking comments on orphan works and mass digitization and it will hold public roundtable discussions on these topics.
Here's an excerpt from the announcement:
The United States Copyright Office will host public roundtable discussions on potential legislative solutions for orphan works and mass digitization under U.S. copyright law on March 10-11, 2014, in Washington, D.C. Requests to participate should be submitted by February 24, 2014. For a participation request form, go to http://www.copyright.gov/orphan/participation-request-form.html.
The Office is also seeking public comments on potential legislative solutions for orphan works and mass digitization under U.S. copyright law. A comment form will be posted on the Copyright Office website at http://www.copyright.gov/orphan/ no later than March 12, 2014. Comments are due by April 14, 2014, and will be posted on the Copyright Office website.
Digital Scholarship | Digital Scholarship Publications Overview | Sitemap
Subcommittee on Courts, Intellectual Property, and the Internet Scope of Fair Use Hearing
The House Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on the scope of fair use on 1/28/14 (video).
Here's an excerpt from "Fair Use Takes Center Stage at Judiciary Committee Hearing": :
One area that got significant attention was the topic of mass digitization, which has been repeatedly determined by courts to be a fair and transformative use. Not only is it fair, but as Professor Peter Jaszi noted during the hearing it is also tremendously beneficial, enabling the indexing and searching of huge sets of works.
Several panelists, however, pointed to the legal status of mass digitization as evidence of "fair use creep," stressing its supposed lack of "transformative" quality over the other fair use considerations. That's a mistake. Mass digitization is absolutely the sort of thing fair use is supposed to enable. Fair use is a flexible doctrine, not a rigid list of exceptions, so that it can accommodate changes in practices or technology.
Digital Scholarship | Digital Scholarship Publications Overview | Sitemap
"A Perspective on the Merits of the Antitrust Objections to the Failed Google Books Settlement"
Pamela Samuelson has published "A Perspective on the Merits of the Antitrust Objections to the Failed Google Books Settlement" in the Harvard Journal of Law & Technology Occasional Paper Series.
Here's an excerpt:
This Article responds to critics of the antitrust objections to the ASA [Amended Settlement Agreement] by making three main points. Part II explains that Judge Chin's incomplete and unpersuasive analysis of the antitrust objections to the proposed settlement agreement is best understood as an effort to encourage the settling parties to adopt more competitive terms in any revised settlement agreement. Part III points out that the DOJ did not reach definitive conclusions on antitrust issues posed by the ASA. The DOJ was, however, obliged to submit an interim analysis because Judge Chin wanted the government's input before he ruled on whether the settlement should be approved and the DOJ did a creditable job under the circumstances. Part IV contends that there was more merit to the DOJ's antitrust concerns about the proposed settlement than some commentators have recognized.
Digital Scholarship | Digital Scholarship Publications Overview | Sitemap
"Laying the Groundwork for Newspaper Preservation through Collaboration and Communication: The Texas Digital Newspaper Program"
Ana Krahmer and Mark Phillips have self-archived "Laying the Groundwork for Newspaper Preservation through Collaboration and Communication: The Texas Digital Newspaper Program" in the UNT Digital Library.
Here's an excerpt:
University of North Texas Libraries established the Texas Digital Newspaper Program (TDNP) to digitize any Texas newspaper title, of any date, and to digitally preserve and make them available via The Portal to Texas History. Through site visits to multiple Texas libraries and personal interviews with librarians, genealogists, educators, students, and historians, UNT Libraries prioritized newspaper digitization within the content scope for The Portal to Texas History and determined processes for acquiring and ingesting multiple formats of newspapers, including from physical papers, microfilm, and born-digital PDF print masters. . . .
This presentation will elaborate on the financial, communicational, and technological processes involved in building the Texas Digital Newspaper Program. UNT Libraries digitally preserves and makes freely available, via The Portal to Texas History, over 1 million pages of Texas newspapers, spanning from 1829 to the present. The Texas Digital Newspaper Program is a case study in digital preservation and open access to digitized newspapers and is utilized by multiple communities of users, including genealogists, academic and lay historians, and K-12 and university researchers.
Digital Scholarship | Digital Scholarship Publications Overview | Sitemap
"The HathiTrust Case and Appeal: A Policy Brief"
The EDUCAUSE Policy Office has released "The HathiTrust Case and Appeal: A Policy Brief."
Here's an excerpt:
On October 10, 2012, Judge Harold Baer of the U.S. District Court in New York ruled in favor of the HathiTrust Digital Library (HDL) and its university partners in a copyright infringement suit brought by the Authors Guild (AG) and other groups. This policy brief outlines why this decision was important for higher education, what impact the February 2013 appeal might have, and next steps.
Digital Scholarship | Digital Scholarship Publications Overview | Sitemap
"Fair Use & Mass Digitization: The Future of Copy-Dependent Technologies after Authors Guild v. Hathitrust"
Angel Siegfried Diaz has self-archived "Fair Use & Mass Digitization: The Future of Copy-Dependent Technologies after Authors Guild v. Hathitrust" in SSRN.
Here's an excerpt from:
This note discusses the future of digital libraries and other products reliant on mass digitization in the wake of the Hathitrust decision. First, this note presents an overview of U.S. copyright protection and the ways in which its goal of incentivizing authors has consistently been balanced by efforts to protect preservation, access, and fair use. . . .
Second, this note discusses the trial court opinion in Authors Guild v. Hathitrust and the court's fair use finding regarding the full-text search index and copies for the print disabled. . . .
Third, this note discusses the Hathitrust decision's effect on the future of the Google Books case and argues that the fair use ruling paves the road for a similar finding while also giving Google leverage in its ongoing settlement negotiations. . . .
Fourth, after exploring the judicial efforts to protect useful technologies as a matter of public policy, this note explores legislative solutions that would better advance copyright's goals of promoting education, research, preservation, and access.
| Digital Scholarship | Digital Scholarship Publications Overview | Sitemap |
Archives and Copyright: Risk and Reform
CREATe has released Archives and Copyright: Risk and Reform.
Here's an excerpt:
This paper considers the place of the archive sector within the copyright regime, and how copyright impacts upon the preservation, access to, and use of archival holdings. It will begin with a critical assessment of the current parameters of the UK copyright regime as it applies to the work of archivists, including recommendations for reform that have followed in the wake of the Gowers Review of Intellectual Property (2006-2010), the Hargreaves Review of Intellectual Property and Growth (2010-2011), the recent Consultation on Copyright (2011-12), as well as the government's response thereto: Modernising Copyright (2012). It considers the various problems the copyright regime presents for archives undertaking mass digitisation projects as well as recent European and UK initiatives in this domain.
| Digital Scholarship | Digital Scholarship Publications Overview | Sitemap |
"Response to Library of Congress NOI on Orphan Works and Mass Digitization"
Denise Troll Covey has self-archived "Response to Library of Congress NOI on Orphan Works and Mass Digitization" in SelectedWorks.
Here's an excerpt:
Responding on behalf of Carnegie Mellon University, we appreciate the commitment of Congress and the U.S. Copyright Office to solving the orphan works problem and the opportunity to address the issues articulated in the Notice of Inquiry. As noted in the 2006 Report on Orphan Works, the orphan works problem is significant, pervasive, and thwarting the purpose of copyright.
Carnegie Mellon's response addresses the primary questions posed in the Notice of Inquiry. The discussion proceeds as follows:
- Current state of play for solving the orphan works problem
- Principles that should shape the solution
- Proposal for a two-pronged solution that might be palatable at this time
EFF and Public Knowlege’s Comments on Copyright Office’s Orphan Works Inquiry
The Electronic Frontier Foundation and Public Knowledge have released their comments on the Notice of Inquiry by the Copyright Office for comments regarding orphan works, Docket No. 2012-12.
Here's an excerpt:
A range of options, none of them exclusive, can alleviate the problems created by the prevalence of orphan works. Even in the absence of more systemic change that can stem the growing number of works whose copyright information disappears into obscurity, the application of fair use and legislative work on damages reduction (both for orphan works specifically and for good faith fair uses generally) can allow a variety of users to bring a variety of works to the public. Mass digitization projects promise to be a part of that process, and should be able to proceed in many cases under current law. However, more ambitious plans for broader, publicly available MDPs could be incentivized to serve the public interest with additional damages limitations, attended by public interest conditions. We
| Google Books Bibliography (XHTML website; over 320 entries) | Digital Scholarship |
"The Authors Guild v. Hathitrust: A Way Forward for Digital Access to Neglected Works in Libraries"
James Aaron has self-archived "The Authors Guild v. Hathitrust: A Way Forward for Digital Access to Neglected Works in Libraries" in SSRN.
Here's an excerpt:
This Comment begins by describing the HathiTrust Orphan Works Project and what it renames the neglected works problem. Next, it examines the legality of the project under current copyright law, focusing mainly on fair use under section 107, and concludes that it is unclear whether the project violates copyright law. Finally it analyzes whether this result fits the policy goals of copyright, and because it does not, proposes both legislative and judicial changes to copyright law to make it clear that in the proper circumstances, nonprofit, educational uses of neglected works do not violate copyright law.
| Google Books Bibliography (XHTML website; over 320 entries) | Digital Scholarship |
Authors Guild et al. v. Google: "Brief of Amici Curiae Academic Authors in Support of Defendant-Appellant and Reversal"
Pamela Samuelson and David R. Hansen have self-archived "Brief of Amici Curiae Academic Authors in Support of Defendant-Appellant and Reversal" in SSRN.
Here's an excerpt:
Summary of argument: Class certification was improperly granted below because the District Court failed to conduct a rigorous analysis of the adequacy of representation factor, as Rule 23(a)(4) requires. The three individual plaintiffs who claim to be class representatives are not academics and do not share the commitment to broad access to knowledge that predominates among academics. . . .
Academic authors desire broad public access to their works such as that which the Google Books project provides. Although the District Court held that the plaintiffs had inadequately represented the interests of academic authors in relation to the proposed settlement, it failed to recognize that pursuit of this litigation would be even more adverse to the interests of academic authors than the proposed settlement was. . . .
In short, a "win" in this case for the class representatives would be a "loss" for academic authors. It is precisely this kind of conflict that courts have long recognized should prevent class certification due to inadequate representation. The District Court failed to adequately address this fundamental conflict in its certification order, though it was well aware of the conflict through submissions and objections received from the settlement fairness hearing through to the hearings on the most recent class certification motions. Because of that failure, the order certifying the class should be reversed
Digital Copyright: Google Asks Court to Reverse Class Certification Decision in The Authors Guild et al. v. Google Inc.
In a brief, Google has asked the U.S. Second Circuit Court of Appeals to reverse the class certification decision by the United States District Court for the Southern District of New York in The Authors Guild et al. v. Google Inc. case.
Here's the brief.
Read more about it at "Google Asks Court to Ax Book-Scanning Suit from Authors Guild."
| Scholarly Electronic Publishing Bibliography 2010 | Digital Scholarship |
Copyright: Authors Guild Appeals HathiTrust Ruling
The Authors Guild is appealing the Authors Guild, Inc. et al. v. HathiTrust et al. ruling.
Here's an excerpt from the "LCA Issues Statement on Authors Guild's Appeal of HathiTrust Decision":
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.
Read more about it at "Google Scanning Is Fair Use Says Judge" and "Unintended Consequences in the HathiTrust Case"
| Digital Scholarship's Digital/Print Books | Digital Scholarship |
"Suing HathiTrust"
C.E. Petit has published "Suing HathiTrust" in Scrivener's Error: Warped Weft.
Here's an excerpt:
This is an initial review only of the third segment of the Google BookScan lawsuits, generally known as the "HathiTrust suit" and formally known as Authors' Guild, Inc. v. HathiTrust, No. 11-6351 (S.D.N.Y.) (Baer, J.). The first two segments were the Authors' Guild's lawsuit against Google, and the publishers' lawsuit against Google (which were later consolidated… and at this writing may be severing). As a side note, the HathiTrust matter was referred to Judge Chin for further consolidation with the existing GBS suits, but was rejected as not sufficiently related… and inconsistent with Judge Chin's elevation to the Second Circuit, although the rejection did not emphasize that issue.
| A Look Back at 23 Years as an Open Access Publisher | Digital Scholarship |
"Brief of Digital Humanities and Law Scholars as Amici Curiae in Authors Guild v. Google"
Matthew L. Jockers, Matthew Sag, and Jason Schultz have self-archived "Brief of Digital Humanities and Law Scholars as Amici Curiae in Authors Guild v. Google" in SSRN.
Here's an excerpt:
The brief argues that, just as copyright law has long recognized the distinction between protection for an author's original expression (e.g., the narrative prose describing the plot) and the public's right to access the facts and ideas contained within that expression (e.g., a list of characters or the places they visit), the law must also recognize the distinction between copying books for expressive purposes (e.g., reading) and nonexpressive purposes, such as extracting metadata and conducting macroanalyses. We amici urge the court to follow established precedent with respect to Internet search engines, software reverse engineering, and plagiarism detection software and to hold that the digitization of books for text-mining purposes is a form of incidental or intermediate copying to be regarded as fair use as long as the end product is also nonexpressive or otherwise non-infringing.
Committee Formed to Examine National-Scale Higher Education Digital Projects
The Council on Library and Information Resources and Vanderbilt University have formed the Committee on Coherence at Scale for Higher Education to examine national-scale higher education digital projects.
Here's an excerpt from the press release:
The group, called the Committee on Coherence at Scale for Higher Education, comprises college and university presidents and provosts, deans, university librarians, and association heads. The committee will provide the leadership necessary to ensure that these projects are designed and developed as elements of a larger and encompassing digital environment. . . .
The committee will focus on research and analysis of the large projects and their correlation; initial costs, operating costs and business plans for sustainability; and benefits and transformational aspects. Examples of these projects include the Hathi Trust, the Digital Public Library of America, the Digital Preservation Network, and data curation centers. Results of the committee's work will be publicized regularly.
Hathitrust Wins Authors Guild, Inc. et al. v. Hathitrust et al. Case
James Grimmelmann reports in "HathiTrust Wins" that Hathitrust has won the Authors Guild, Inc. et al. v. Hathitrust et al. case .
Here's an excerpt:
On every substantive copyright issue, HathiTrust won:
- Section 108 on library privileges doesn't limit the scope of fair use.
- A search index and access for the print-disabled are both fair uses.
- Search indexing is a transformative use.
- The libraries aren't making commercial uses, even though they partnered with Google to get the scans.
- The plaintiffs haven't proven that HahiTrust is creating any security risks.
- There is no market for scanning and print-disabled access, nor is one likely to develop.
- UM is required under the ADA to provide equal access to the print-disabled, and is allowed to under Section 121 of the Copyright Act.
| Reviews of Digital Scholarship Publications | Digital Scholarship |
Google and Publishers Settle Seven-Year-Old Copyright Lawsuit over Google Library Project
Google and the Association of American Publishers have settled the copyright lawsuit over Google Library Project. The related Authors Guild lawsuit has not been settled.
Here's an excerpt from the Google press release:
The agreement settles a copyright infringement lawsuit filed against Google on October 19, 2005 by five AAP member publishers. As the settlement is between the parties to the litigation, the court is not required to approve its terms.
The settlement acknowledges the rights and interests of copyright-holders. US publishers can choose to make available or choose to remove their books and journals digitized by Google for its Library Project. Those deciding not to remove their works will have the option to receive a digital copy for their use.
Apart from the settlement, US publishers can continue to make individual agreements with Google for use of their other digitally-scanned works. . . .
Google Books allows users to browse up to 20% of books and then purchase digital versions through Google Play. Under the agreement, books scanned by Google in the Library Project can now be included by publishers.
See also the AAP press release.
"It Was Never a Universal Library: Three Years of the Google Book Settlement"
Walt Crawford has published "It Was Never a Universal Library: Three Years of the Google Book Settlement" in Cites & Insights: Crawford at Large.
Here's an excerpt:
Remember the Google Books settlement? It was going to settle a four-year-old pair of lawsuits (four years old then, eight years old now) against Google (by the Association of American Publishers, AAP, and the Authors Guild, AG) asserting that Google was infringing on copyright through its two-line snippets from in-copyright books scanned in the Google Library Project—and by the scanning itself. Later, a third group representing media photographers also sued Google for the same actions. . . .
This is a long set of notes and comments (cites & insights). It strikes me that the topic and complexity deserve that length—but note that I'm offering much briefer excerpts and comments on most items than I normally would in this sort of roundup.
After two sets of general notes and overviews (one before the settlement was rejected, one after) I'm breaking the discussion down by topics rather than chronologically.