Re: More on Google Suspends Scanning Copyrighted Works -- For Now

[Karl Bridges <karl.bridges@uvm.edu>]

Could one not argue that, at this point, books constitute an "obsolete
format" as defined in the Act?  I also, just as a personal comment not
based on any particular legal knowledge, doubt whether this restriction of
non-profits to doing their own work and not being allowed to contract with
a commerical vendor would hold up in court.  In many cases libraries,
especially state institutions, are subject to open bidding laws.  I could
see a private vendor being very upset that they were denied a chance to
bid on an opportunity for a large copying project.  In fact, isn't what
Google is presently doing a violation of that very aspect of the law/ To
my knowledge there wasn't a regular bidding process involved with Google
to insure that the citizens of particular states were being offered the
services at the lowest possible cost. And if I'm wrong I stand corrected.  
perhaps bidding wasn't needed in that case.  And, finally, in any event,
one is really splitting hairs here.  What would the difference between
having an outside company do a project and a situation where the project
is done internally -- but advised by an "outside consultant" who tells the
library how to do it step by step -- what equipment to buy, the process to
use, etc etc.  In essence what you have then is simply a big money
laundering operation where the project really is managed and being done by
a commercial operation, just under the auspices of the university.

Karl Bridges
100 Bailey Howe Library
802-656-8132


Peggy Hoon wrote:

> Limiting my comments to the copyright law portion only, I would correct
> the statement that the libraries would "be within their rights to scan the
> books and make an internal copy."  Section 108(1)c of the Copyright Act
> only permits Section 108 libraries to copy entire published works for
> replacement purposes if their copy is damaged, deteriorating, lost,
> stolen, or in an obsolete format and only if they have determined that an
> unused replacement cannot be obtained at a fair price.  Furthermore, if
> they make a digital copy, that copy cannot be accessed outside the
> premises of the library.
>
> That only leaves Section 107, fair use, as potential authority for
> digitizing their copy of a book.  The first action- copying an entire book
> - is what is in controversy here and that act is almost certainly beyond
> the scope of fair use.  The second act - transmitting the "snippets" - is
> another thing altogether.
>
> And even if the library was within its rights to digitize an entire book
> (under the 108 conditions above), the legislative history of 108
> specifically states "It would not be possible for a non-profit
> institution, by means of contractual arrangements with a commercial
> copying enterprise, to authorize the enterprise to carry out copying and
> distribution functions that would be exempt if conducted by the non-profit
> institution itself."
>
> Peggy