From: "Thatcher, Sanford Gray" <[log in to unmask]>
Date: Sat, 4 Apr 2020 17:42:30 +0000
I would only add to Kevin's remarks that, besides this not being a
"transformative use" under the first factor, one must remember what Georgia
Harper once astutely said in her arcticle "Google This!," viz. that judges
in fair-use cases make up their minds about what is the best policy outcome
and then use the four factors to justify the decision they have reached on
policy grounds, which in this case would probably favor a finding of
noninfringement for IA.
Sandy Thatcher
------------------------------
*From:* Thatcher, Sanford Gray <[log in to unmask]>
*Sent:* Friday, April 3, 2020 12:15 AM
*To:* LibLicense-L Discussion Forum <[log in to unmask]>
*Subject:* Re: The National Emergency Library
I would only add to Kevin's remarks that, besides this not being a
"transformative use" under the first factor, one must remember what Georgia
Harper once astutely said in her arcticle "Google This!," viz. that judges
in fair-use cases make up their minds about what is the best policy outcome
and then use the four factors to justify the decision they have reached on
policy grounds, which in this case would probably favor a finding of
noninfringement for IA.
Sandy Thatcher
------------------------------
*From:* LibLicense-L Discussion Forum <[log in to unmask]> on
behalf of LIBLICENSE <[log in to unmask]>
*Sent:* Thursday, April 2, 2020 10:32 PM
*To:* [log in to unmask] <[log in to unmask]>
*Subject:* Re: The National Emergency Library
From: "Smith, Kevin L" <[log in to unmask]>
Date: Thu, 2 Apr 2020 13:55:10 +0000
OK Lisa, I will give it a try. I want to stress, however, that this is a
purely academic undertaking, for a couple of reasons.
First, I have never been a litigator and never presented a fair use
argument before a court. Also, I have no connection with the Internet
Archive, so I am not familiar with their thinking on this topic, beyond the
public statements we all see.
Second, there is no lawsuit in the offing, to the best of my knowledge. In
spite of multiple angry and bellicose denunciations from the usual groups,
IA has been operating for 24 years without getting sued for copyright
infringement. Maybe this new strategy will change that, but surely a
potential plaintiff would be deterred from bring suit in the midst of the
current crisis.
As to the factors, here, briefly, are the arguments I would make.
The purpose of the use is socially beneficial, non-profit, and based on a
policy endorsed by Congress and the courts in the doctrine of first sale.
The U.S. does not have a “public lending right,” which indicates strong
support for frictionless library lending, and the emergency situation we
are in makes this policy even more compelling. People who cannot leave
their homes or go to the library need and deserve the greatest possible
access to information, entertainment and opportunities to learn, especially
since virtually all children are now being home-schooled.
The nature of the works involved is variable, of course, but the policy
reasoning above indicates the need for widespread access to a diverse
corpus of materials.
The permissible amount is always judged in relationship to the purpose, and
in this case the strong social benefit can only be obtained by providing
access to entire works. Since section 108 of the copyright law allows
libraries to make complete copies for users under certain conditions, the
NEL is simply building on a well-established policy to respond to
extraordinary circumstances.
The market for library lending is not a market that has ever been available
to publishers. That is the point about first sale and the lack of a public
lending right. And in this crisis situation, I would argue for a market
failure, even in cases where digital licenses are available. The licenses
are too hit-or-miss, too complicated, and involve dealing with too many
different entities. It is ridiculous to expect ordinary citizens to
navigate that landscape, which usually requires expert librarians and
lawyers. Indeed, this fact has been recognized by many publishers who have
opened up access in various ways in or to reduce the market friction.
Representing NEL, I would argue that it is congruent with these other
response to a well-recognized market failure.
This, of course, is just my “off the top of my head” stab at the outlines
of an argument. Two final reminders. Fair use does not require a “win” on
every factor; it is a “totality of circumstances” test, and, as I said,
COVID is now one of those salient circumstances. Second, by insisting that
it is a library, IA might be able to assert the remission of statutory
damages for a good faith belief in fair use for employees of non-profit
libraries that is found in section 504 (c)2 of the copyright act. In fact,
this potential inability to get statutory damages might be one of the
reasons IA has not been sued before.
Kevin L. Smith
Dean of Libraries
University of Kansas
From: "Hinchliffe, Lisa W" <[log in to unmask]>
Date: Wed, 1 Apr 2020 04:52:50 +0000
I'm wondering if Kevin (or really anyone else!) could articulate what a
fair use case for NEL is. I've seen a number of assertions that there is a
fair use case to be made but have not yet encountered one being made, e.g.,
working through a four factor analysis.
And, hey, while I'm asking :) ... I'd really love to understand how that
analysis is affected in the instances in which digital copy is available
for purchase. Because that's the situation that I find most puzzling
being asserted as fair use for NEL.
Lisa
Lisa Janicke Hinchliffe
University Library
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*[SNIP]*
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