From: Kevin Smith <[log in to unmask]>
Date: Mon, 19 Mar 2012 12:00:58 +0000

Just want to point out that the Author's Guild lawsuit against Hathi
Trust and five of its partner institutions is about access to orphan
works, not reuse.  The failed Google Books Settlement has given some
organizations a taste for making a profit by selling such access, IMO,
and they are anxious to prevent any successful non-commercial method
of providing access to orphans.  This is why the recent filing in the
Hathi lawsuit insists that there is no fair use for libraries at all,
to prevent libraries arguing fair use as a justification for access to
orphan works.

I very much wish the world was as Sandy suggests, but I am afraid I
see a much more contested landscape, even over basic access to works
that are not subject to any commercial exploitation.

Kevin L. Smith
Duke University
[log in to unmask]

-----Original Message-----
From: Sandy Thatcher <[log in to unmask]>
Date: Fri, 16 Mar 2012 19:36:21 -0500

But is not the general problem that we identify under the rubric of
"orphan works" mainly a matter of making commercial re-use of those
works through derivative works, adaptations to other media, reprinting
portions in anthologies, translations, and the like? After all, we can
all make some use of "orphan works" under fair use, so it is not as
though they are completely unusable. I don't believe  people have
talked about the problem of orphan works as a matter of access, but
rather re-use beyond fair use.

Sandy Thatcher


> From: Jean-Claude Guédon <[log in to unmask]>
> Date: Thu, 15 Mar 2012 21:43:30 -0400
>
> Personally, I prefer CC-by, but if someone chooses CC with a
> non-commercial clause, the article does remain freely accessible and
> usable, whatever happens to the author, and this is what concerns
> researchers most. As for the fuzzy and troubling areas about the NC
> (does publishing with advertising count as commercial use, for
> example?), they can be a concern, but not for researchers so long as
> the same article is in a regular depository run, for example, by a
> library. At least, I cannot think of a situation where a researcher
> wanting to read, use and cite research results would run afoul of a
> CC-NC constraint. If we remember that scientific communication is
> there to serve researchers first, and not publishers first (or at
> all), such issues are of a second-order nature. In other words, in the
> context of a first approximation, they can be neglected.
>
> Jean-Claude Guédon
> Professeur titulaire
> Littérature comparée
> Université de Montréal