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

[Peggy Hoon <peggy_hoon@ncsu.edu>]

No.  For purposes of Section 108, "obsolete" a format shall be considered
obsolete if the machine or device necessary to render perceptible a work
stored in that format is no longer manufactured or is no longer reasonably
available in the commercial marketplace.  "Ordinary" paper books are not
obsolete within the meaning of Section 108.

The prohibition has already been upheld in courts and in fact was
specifically cited in the Michigan Document Services case -

"And "the courts have . . . properly rejected attempts by for-profit users
to stand in the shoes of their customers making nonprofit or noncommercial
uses." Patry, Fair Use in Copyright Law, at 420 n.34.

As the House Judiciary Committee stated in its report on the 1976
legislation, "It would not be possible for a non-profit institution, by
means of contractual arrangements with a commercial copying enterprise, to
authorize the [**21] enterprise to carry out copying and distribution
functions that would be exempt if conducted by the non-profit institution
itself." H.R. Rep. No. 1476, 94th Cong., 2d Sess. at 74 (1976)."

I think you are confounding this provision with open bidding for projects
that the commercial vendor is otherwise permitted to do.

There are many rather significant differences between libraries and
for-profit copiers beginning with their essential missions.  It was in
recognition of their many unique characteristics that libraries were able
to convince Congress to provide them the special exemptions in 108.  
These exemptions, if abused, can also be taken away. In fact, the
Librarian of Congress has convened a special 108 Study Group
(http://www.loc.gov/section108/index.html) that is to submit its report by
mid-2006.

Peggy

Peggy E. Hoon, J.D.
Scholarly Communication Librarian
Special Assistant to the Provost for Copyright Administration
North Carolina State University Libraries
Raleigh, NC  27695-7111
919.513.2045
919.513.3553 (fax)
peggy_hoon@ncsu.edu

> From: Karl Bridges <karl.bridges@uvm.edu>
> Date: Tue, 16 Aug 2005 17:29:34 EDT
> To: <liblicense-l@lists.yale.edu>
> Subject: Re: More on  Google Suspends Scanning Copyrighted Works -- For Now
> 
> 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