A safe harbor, not an anchor

Whenever Jonathan Band writes a “Friend of the Court” brief on behalf of the Library Copyright Alliance, it is sure to be worth careful reading.  One not only learns a lot about the particular case from Jonathan’s filings, but also a good deal about the legal and social place of libraries the U.S.

Jonathan’s most recent brief amici curia was filed ten days ago in the case brought by the Authors Guild against the Hathi Trust and five of its university partners. In some ways it is an unlikely case in which to seek any enlightenment, since the posture and the legal theories advanced by the plaintiffs are odd, to say the least.  While it is hard to see this complaint going very far, the consequences if it did, and especially if the recent motion for partial summary judgment filed by the Authors Guild garnered any credence from a court, would be catastrophic for libraries.  Fortunately, Jonathan’s brief in response to that motion is smart and, I think, devastating.  And, as usual, it tells libraries some important things about themselves.

The motion, which I discussed here several weeks ago, argues that the only exception that libraries can rely on in the Copyright Act is section 108, the specific exception that authorizes some preservation and interlibrary loan activities.  It explicitly claims that fair use is unavailable to libraries, whose rights, it asserts, are entirely circumscribed by section 108.

In short, the AG would transform a safe harbor included in the copyright law promote certain library services into an anchor that would restrain libraries from performing many of their day-to-day activities.  Or, as Jonathan puts it, “They [the Authors Guild] seek to transform an exception intended to benefit libraries into a regulation that restricts libraries.”

Jon goes on to list many of the library activities that the public depends upon that would be of doubtful legality if the Authors Guild’s argument was taken seriously, ranging from ordinary, daily lending of materials to digital exhibits.  One of his most effective arguments is based on the many portions of the Library of Congress’ American Memory project that explicitly rely on fair use.  As the brief says, under the plaintiffs’ theory, the Library of Congress, in which the Copyright Office itself resides, would be “a serial copyright infringer.”

The absurd results of this radical and insupportable theory advanced by the Authors Guild are balanced by arguments both that the plain language of the law (and its legislative history) support the obvious proposition that fair use is available for libraries, and that, in fact, section 108 would permit the orphan works project that Hathi proposed and the Authors Guild seeks to prevent.

So the brief effectively counters the bizarre theory advanced by the AG.  But it also implicitly tells us two things about where libraries stand today that are worth noting.

First, it reminds us that libraries are always adapting to the changing needs of their patrons, many of which today are driven by rapid advancements in technology.  The ways people encounter culture shift with alarming regularity and libraries must stay abreast of these shifts.  Fair use, which has existed in U.S. law for over 170 years, has always been a key part of libraries’ ability to respond to patron needs, and Congress recognized the continuing need for libraries to be able to rely on fair use when it drafted the 1976 Copyright Act.  Section 108 is important for libraries, and it still has a role to play in library services.  But fair use is, perhaps, more important in an era of rapid change.  As Jon writes (quoting a 1990 case):

While the specific exceptions provide courts with no discretion, fair use is “’an equitable
rule of reason’ which permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which the law is designed to foster.”

The second, more troubling, reminder from this case and Jon’s filing is that the Authors Guild has shown itself willing to launch an extremely broad and devastating attack on libraries in order to protect some strange fantasy about how they can make more money.  Libraries have always been, and should remain, the best ally of authors who seek to find readers. It is foolish and short-sighted of the Author’s Guild to turn on libraries, and to advance a theory that would cripple them, without apparently realizing how much harm those actions could do to authors.

In a previous debate about this case, a commentator wrote “I don’t care about readers, I want buyers.”  It seems this attitude is assumed by the leaders of the Authors Guild, but it is disturbing for three reasons.

First, this attitude neglects the fact that library readers often become buyers.  Marketing their books is something authors expect from publishers, but if libraries are taken out of that equation, it will grow more difficult.  Especially in the world of online purchasing, the ability to discover and browse a book at a library is one of the best routes to placing an order for that book.

Second, not all authors (or even most, I daresay) share this attitude.  The majority of authors, including all scholarly authors, write, I hope, to be read.  Many are simply not motivated by the lure of profit, since profit is unavailable.  When profit is possible, it can be very important, but it does suppliant, in most authors I believe, the fundamental desire to communicate, to be read.

Finally, when the desire to make a profit does overcome the desire to express oneself and to be read, the result is inevitable an uninteresting book.  Those who do not think first about readers do not deserve any.

If the diverse members of the Authors Guild do not all share this assumption that readers and buyers are distinguishable, and only the latter are desirable, than they are seriously misrepresented by this filling, and should be grateful, along with the library community, to Jon Band for his work on behalf of readers everywhere.