According to an amicus brief prepared by Jonathan Band, on behalf of three major library organizations, the motion for partial summary judgment filed in February by the Authors Guild in its lawsuit against the HathiTrust reflects a deeply flawed, distorted view of libraries’ rights. Nevertheless, if a federal judge accepts the Authors Guild argument, Band argues, it would dramatically impact any library’s’ ability to provide the most basic services, “including lending books and providing Internet access to the public.” The case is set to heat up quickly, with discovery in the case to completed by May 20, and potential trial date set for November. Band filed his brief on behalf of the Library Copyright Alliance.

In its motion for partial judgment, Authors Guild attorneys hold that the HatiTrust’s mass digitization and orphan works projects do not qualify for any “defense recognized by copyright law,” observed New York Law School's James Grimmelmann, who called the motion “a doozy.” It essentially argues that libraries cannot avail themselves of the fair use provisions of copyright law contained in section 107 to justify violations of section 108, the clause which offers exceptions for libraries. But that claim, Band argues, is a plainly false.

“[Plaintiffs] seek to convert an exception intended to benefit libraries into a regulation that restricts libraries,” Band writes. “They take this position notwithstanding the plain language of Section 108(f)(4) that nothing in Section 108 ‘in any way affects the right of fair use as provided by section 107.” If the Authors Guild motion were to be upheld, he continues, such an interpretation “would prevent libraries from performing their most basic functions.”

Under plaintiffs’ reading of Section 108, he argues, “libraries could no longer rely on the first sale doctrine to permit the more than four billion circulation transactions that occur annually,” nor could they “invoke the fair use right to allow the reproductions incidental to libraries providing Internet access to more than 70 million Americans,” the ruling would also prevent libraries from engaging in a wide range of other activities “such as the exhibition of photographs, the preservation of musical works and motion pictures, the archiving of websites, and the reproduction of multiple copies of articles for classroom use.”

But the legislative history of the Copyright Act stresses that a specific exception does not “limit the availability of fair use for conduct that does not fall within the scope” of the exception in Section 108, Band stresses. “Libraries and archives can freely rely on fair use to engage in activities whether or not they are explicitly permitted under Section 108. Moreover, libraries and archives can exercise their rights under both Sections 107 and 108 simultaneously, in concert, in succession, or independently. While Section 108 creates a safe harbor where libraries can make settled uses without having to engage in fair use analysis, nothing in Section 108 precludes libraries from making fair uses.”

The Authors Guild filed suit in September, 2011, alleging that the HathiTrust, a cooperative of more than 40 university libraries, is built with millions of “unauthorized” scans created by Google. The suit seeks an injunction barring the libraries from future digitization of copyrighted works; from providing works to Google for its scanning project; and from proceeding with its plan to allow access to “orphan works.” It also asks the court to “impound” all unauthorized scans and to hold them in escrow “pending an appropriate act of Congress."

As for the orphan works initiative also proposed by HathiTrust, temporarily suspended while library officials revamp their processes, Band says that part of the project is also permissible—and points to the work of another institution—the Library of Congress.

For many of the collections within American Memory, the Library of Congress states that it is providing online access to items under an assertion of fair use if, despite extensive research, the Library has been unable to identify” the rightsholder,” Band observes. “In fact the Library of Congress does far more with orphan works than the HathiTrust proposes to do in its orphan works project—the Library of Congress has “digitized these works them and posted them online (without prior notice) where they can be freely downloaded by the entire world.” If a court held the Authors Guild position, Band notes, “the Library of Congress would be a serial infringer.”

The Library Copyright Alliance (LCA) consists of three major library associations—the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries, representing over 300,000 information professionals and thousands of libraries throughout the United States and Canada.