POST: A Win, Oddly

Kevin Smith (Duke University) has written a┬ápost┬áon the Scholarly Communications @ Duke blog about the recent┬áAuthors Guild v. HathiTrust┬ádecision, which Smith describes as “another important win for libraries and fair use.”┬áSmith discusses a┬átechnical but important aspect of┬áthe decision:

The oddity about this remand is that it does not actually question the conclusion that digitization for preservation can be fair use. Instead, the Court sent this portion of the case back to the lower court to decide if there was any plaintiff remaining in the case, once it was determined that the [Authors Guild] lacked standing, who was at any real risk of having a preservation copy of their book released by HathiTrust while there were still copies commercially available. In short, The Court of Appeals suggested that any ruling about fair use might have been premature because there was no plaintiff in a legally-recognizable position to raise the challenge. It is still entirely possible that, if such a plaintiff is found in the remaining group of named authors, fair use could nevertheless be affirmed. And, because of the rest of the ruling, it would be hard to see what difference even a ruling against fair use for preservation would make to the actual practice of the HathiTrust. So this was really a technicality, and quite strange.

While this decision was a win, Smith cautions librarians that “the best protection the library community has against aggressive litigation is still, as it always has been, careful and responsible reflection. In that context, fair use is an increasingly safe option for us.”

 

 

 

dh+lib Review

This post was produced through a cooperation between Katrien Deroo, Nabil Kashyap, Heather Martin, Monica McCormick, Jennifer Millen, Trevor Mu├▒oz, Zachary Schoenberger, Roberto Vargas (Editors-at-large for the week), Caro Pinto (Editor for the week), Sarah Potvin (Site Editor), and Zach Coble and Roxanne Shirazi (dh+lib Review Editors).