On 4/26/2011 1:55 PM, Karen Coyle wrote:
> Quoting Ed Jones <ejones_at_NU.EDU>:
>
>> My understanding is that libraries that contract with Google to have
>> books digitized are provided with copies of the digitized books, in
>> part to address this very concern.
>
> Now that the settlement has been denied by the judge, the status of
> the digital copies isn't all that clear to me. For books under
> copyright, the libraries were given copies ONLY if that could meet
> certain criteria for secure storage. I do not know if every book is
> now safely stored in HathiTrust, but that's an interesting question.
It gets tricky. If we assume that no settlement every happens... that
doesn't change the contract between the libraries and Google. Whatever
restrictions the contract put on libraries are still in place. (It only
changes the effect of the contract if the contract had words to the
effect "if the settlement gets denied, then you ALSO aren't allowed to
do X anymore."
But if we were assuming the settlement would allow libraries to do
certain things that might otherwise be prevented under copyright -- a
separate issue than the Google contract -- then this is no longer the
case, if we assume a settlement never happens.
What are those things? Well, clearly libraries can't distribute full
text of in-copyright works. And clearly libraries can do whatever they
want with out-of-copyright/non-copyright-items. (Or whatever they want
in the US with things not currently copyrighted in the US. And yeah,
it's a big mess figuring out what's what, we know that already). And
'orphan works' are still the same as they ever were -- either they're in
copyright or not, and you've got to figure it out, and if they're in
copyright they're in copyright, regardless of if the owner can't be found.
But are libraries violating copyright merely by making/having _the
copies on their servers/indexes_? Are they violating copyright merely
by allowing search-only with page-number-hits of in-copyright items?
That is what the original lawsuit by the publishers against Google
alleged, that merely making the copies (and not distributing them), as
well as providing search over indexed digitized copies -- was something
that could not legally be done without permission of the copyright holder.
A bunch of people (including lawyers/scholars) thought that Google could
win that one on 'fair use'. But instead they chose to settle, which
would have left the court not making a decision on whether that was fair
use or not. (A number of people were disappointed in this, because they
wanted to see the court decide it was fair use, making things more
clear.) And the settlement was denied.... which means the court still
hasn't made a decision. (And may never; if the suit is dropped, or if an
alternate settlement is approved).
So we still don't really know for sure. But I'm pleased to see that
HathiTrust is going forward on the assumption that they have a fair use
right to scan those things, keep the scans, and allow search (but not
full text) on in-copyright stuff without copyright holder approval. And
are presumably prepared to defend themselves in court.
Received on Tue Apr 26 2011 - 14:58:42 EDT