 Opening Up Orphan Works, remarks by Paul Courant, Sharon Farb, and Jonathan Band at the 159th ARL membership meeting. Convened by Betsy Wilson. Okay, good morning everyone. Welcome to Opening Up Orphan Works. My name is Betsy Wilson and I stand before you as Chair of the Fair Use and Related Exemptions Working Group and also the Dean of the University of Washington Libraries, and we like to say that's in the right Washington. We call this one the other Washington. Today's session will focus on the importance of making Orphan Works easy to discover and to use for deepening our understanding of the world around us, learning, and discovery. So for those of you who don't know what Orphan Works are, let me just give a quick definition. Orphan Works are works that are subject to copyright, but whose copyright owners cannot be identified or contacted. I kind of think of seances, contacting them, the ones that are no longer being able to be contacted. You may have noticed a wee bit of press coverage on Orphan Works in the last few weeks. This morning our three speakers will review some of the issues for libraries engaging in opening up Orphan Works, and we'll have a synthesis or an analysis of the author's guild lawsuit against Hathi Trust and five research libraries. We have been working together as libraries for many years to try to address Orphan Works, and I can think of no finer individuals than those on the stage to discuss the current situation, the implications, and next steps. Our speakers will each take no more than 15 minutes to frame their presentation. We'll have them all together one after another, and then we'll have some time for your questions and comments. Since two of our institutions represented by our panelists are subject of the subject of legal action, I'd like to remind you of what Jim Williams said during the business meeting, and for those of you who are not at the business meeting, listen up. Remember that the discussions today are not privileged, but they are discoverable. So we ask that you refrain from tweeting or blogging the session. Before we begin, I'm just going to give a quick introduction because I know we want to get to our August panel. You'll find a bio on each speaker in your packet, and I trust you have read these. If not, please do so at some point. Each is as distinguished as the next and is recognized for their expertise in Orphan Works. They will be, I'll do a quick introduction in the order of their speaking. Our first speaker will be Paul Courant. Paul has the largest number of titles on the panel. If you read his biography, you will see he is University Librarian, Dean of Libraries, Shapiro Collegiate Professor of Public Policy, Thurnau Professor, Professor of Economics, and Professor of Information at the University of Michigan. You can also throw in a couple of his previous titles, Provost and Executive Vice President. What you will not read in his bio is that he hails from a family of many historic figures, including a saint in the Catholic Church. I'm not saying that Paul is a saint, but he is a fly fisherman extraordinaire. That has nothing to do with Orphan Works, but I had to put it in anyway. Our second speaker is the colorful Sharon Farb. And if you know the meaning of Farb in German, you get that little pun there. If you read her bio, you'll see that she is AUL for collection management and scholarly communications at UCLA. She holds a JD and PhD and her research focus appropriately on policy issues affecting us all, copyright, privacy, and intellectual freedom. What you will not read in her bio is that she thinks the world needs more plaid. And she wears it whenever she can, although she's not wearing any today. In the future, perhaps we'll see those great pants again. Our cleanup speaker in the parlance of the baseball season is Jonathan Band. If you read his bio, you'll learn that he helped shape laws governing intellectual property in the Internet through a combination of legislative and appellate advocacy. After receiving his JD from a notable ARL institution, and that would be Yale, he worked at the DC office of Morrison and Forster for about a decade. In 2005, he established his own firm, which is Lucky for Us. What you will not find in his official bio is that he is something of an orphan works rock star, and he is seen as a saint in the ARL public policy community. So with no further ado, I invite Paul Courant to the podium to get us rolling. Thank you all for being here. I have to say, I hadn't thought about bringing Cousin Edith the Saint in, which might actually be helpful. And one of the nice things about being introduced by somebody from the University of Washington is that fly fishing and saintliness sort of go together in that part of the world. In fact, the famous River Runs Through It, McLean's book, starts the opening lines about there wasn't much difference between religion and fly fishing in my family, and that's an amenable notion. So the original version of this talk was I was going to do a little cheerleading and preaching about how important orphan works are, and mostly tell you all things that you already know, describe in some detail what we're doing in Michigan, why it's so cool, and invite you all to join us. And things have changed slightly. It feels disingenuous to invite you all to join us in the particulars of becoming defendants in lawsuits. But there are actually things that you can do to help, and we'll get to the end. So I'm mostly actually going to stick to the old script. This isn't about the lawsuit. This is about why it's important to do something about orphan works. And the lawsuit is an unnecessary, misguided, and painful distraction. So here's a piece that was in the old talk, and I'm actually going to now mostly go to the old talk, that's still true. No one in his or her right mind should object to this project. No baby seals were harmed in the making of this movie. And if one can imagine living in a world in which publishers and scholars and readers were all interested in getting works in front of the eyeballs of people who were interested in those works, and in providing a reasonable living to content producers, I'm actually for that, right? Part of my day job has been being a content. So just imagine this world. Publishers and authors want things to get produced in red and earn a decent living. Research libraries want to make the works available to enhance teaching and research and actually more because we have this odd belief that knowing things about the world and knowing things about the human mind are good. We really do believe that. There are many works, some many. First thing, question with copyright not attached, so-called orphan works. W log is a phrase from proving theorems. Without loss of generality, we'll call them orphan works. You can call them something else if you want. And how would a reasonable world approach this set of issues? Well, there's been, as we all know, tons of orphan work task force stuff, which has sketched out a quasi-reasonable approach. And Sharon will talk a little bit about that later. The Google book settlement, remember that, was actually pretty reasonable in a way. It solved the problem by allowing Google to basically sell access to these works. That, I thought, was a good thing. I would have been happier, and I think that a lot of people would have been happier if the way that settlement had been written, the proceeds from those works would have gone to, I don't know, reduce the federal deficit or support the Association of Research Libraries or some other worthy cause rather than to support various authors, that support in various ways the authors of works that weren't orphan works. Somehow that direct exploitation of orphans seemed a little unseemly to some of us. I think my lawyer thinks it's okay for me to say that. But the notion that we would actually have access to them, right, that one of the great strength, indeed in some ways the greatest strength of the Google settlement was it gave us the ability to use essentially everything, including orphans and various mixed status critters, right, where we actually know the publisher and we know the author and we still don't know who has rights, right? That might even be a bigger group than the orphan works and negotiating deals to make those works findable by onesies and twosies is gonna take a lot of time. So we liked, oops, did I, no, I didn't do anything, that's good. So we liked in this regard the Google settlement. So it went away, it's not gonna happen. There were other things about Google settlement we might not have liked and you don't have to have liked the Google settlement to continue to listen to me if you're still listening. It's okay. Although I have to say I remember when the Google settlement first came out I remember writing a blog post which was entitled on being in bed with Google and the closing lines of it were the reason for being in bed with Google is that the alternative is to sleep alone and actually I think that there was more to that than I knew at the time. So we don't have that. So we asked the question, we at Michigan, we had a number of other libraries. So what can we do? And we decided that we should work with publishers and authors to develop a process that would do a good job of identifying orphan works and enable the use of them in a limited way that didn't commute with any commercial uses. No one harmed, right? The principle that comes in economics of Pareto improving trade is one in which everybody is at least as well off as they were when they started and that was the form in which we had in mind for this project and still do. So we made some awful, unpleasant mistakes. We posted 30 odd books which stirred up lots of people looking at them which showed our mistakes. Some of those books shouldn't have been on the list. And now we are somewhat chastened by how difficult it is to identify orphan works. That's actually an interesting useful message. Again, Sharon will talk more about that. And we invited publishers and an association of authors. Oh, what's their name? The author's guild, that's right, to a meeting. And the author's guild chose to sue us rather than come to the meeting. But you could imagine a process in which what we're trying to do is open up pieces where you can open them up without anybody being hurt either in terms of commercial rights or moral rights. Indeed, that's the process that I think follows from the just supposed logic. Okay, some quick slides with numbers and pie charts to make it look like we know what we're doing here. Come on, come on. No, that's not happening. All right. Try pushing this button. Yes. So these are very familiar looking kinds of figures. We're finding in the Hottie Trust pretty stably about 27% of the stuff is in the public domain, so there's a lot of that isn't. And obviously much of that is, I mean, that's all copyright protected. And so we obviously are much restricted in the way that we can use it. It's quite typical of things that people find in lots of libraries. And then this sort of breaks out the public domain content into its various pieces. This is all work that comes out of the copyright, the research management system, which has been funded by IMLS, and lots of us have been involved in. And we've actually looked carefully at like 100,000 works. This is, these are slides from a paper of John Wilkins that you should go look at in which John reaches the conclusion that there are lots and lots and lots of orphan works. I'm not so sure. The title of the paper is Bibliographic Indeterminacy. And what I do believe is that there are lots and lots and lots of works that are bibliographically indeterminate in the sense of knowing who you would go make a deal with to get rights to use these works. I have to toss out here, of course, the publishers and authors are also struggle as much with rights clearance issues as we do. And if you could move towards a process by which we were getting towards a registry of works and who held them, would that be cool or what? That would be useful for everybody. And that was also something we had in mind. This is, again, another slide from John. And the important piece here is on the left in the clump, 1923 to 63, which is where the copyright review management system has been working. And there we really do find a remarkable number, about half, of the works that are a little bit less than half of the works that are 23 to 63 in the U.S. are not in copyright. Things didn't get renewed. And this is a rich sample now. We have over 100,000 looks, and we have had fewer than a dozen cases where people have said, oh, no, actually, this work isn't copyright. So that error rate, a dozen per 100,000, is too good. Surely there are others out there that we've misclassified. You know, you classify grains of sand as being black or white. You have a higher error rate than that. But still, the implication is that this process is working quite well and it has enabled us and our libraries to open up now well over 100,000 works that turn out to be a public domain even though if you just did the quickest cut, you wouldn't think they were. And this is now John's pure guess as he calls them in which he thinks there are lots and lots of orphans. And actually, I think, as I said, there are lots and lots of indeterminacies. So let me jump to what our plan was and still is. Identify plausible orphans, which turns out to be harder than easy. I think I guess harder than I thought. Work with possible rights holders to assure a good process. Work towards the beginnings, the inklings of a registry. This should be easy, but as we know, life is full of surprises. Create a pretty good list. Publish it, flog it, sell it, post it on billboards, put it up on the web. And here I have to say, uncharacteristically, since I'm not a saint, I feel pure as the driven snow. So part of our process all along was to put the works up on a list for 90 days and let people find if there was a claim out there. And because we used that process, actually, no works have been released to anybody as a result of the Orphan Works project. No works at all yet, but certainly no works because they weren't orphans. And I think that using the world to help verify that you've done things right is really sensible and indeed an important tradition in scholarship. We publish things in peer-reviewed journals and then people read them and they say, no, no, no, that coefficient isn't 2.03, it's 2.04, you moron, and here's why. And that's actually good that that kind of information goes out there. I got about three minutes? Yeah. Two? All right. Oh, that's very sweet of you. Thank you. See, this is because I'm a fisherman. She gives me the extra minute. And then the last, the important piece here is the way in which we intend to make these works available also doesn't harm anybody. So we have books in the library and the plan was, the plan is, people who are authorized users of the University Library where this book is because we bought the book from some, I don't know, author or somebody and kept it in the library. We have these books in the library and if you are an authorized user of the library, you can go look instead from your breakfast nook with your laptop at the digitized copy of the same book and actually we were going to be really careful if we have one copy that we bought, right? Only one is going to be allowed to be read digitally at the same time. So no sales are lost, right? And actually if reading the content is the thing that people, authors sadly have to give up or happily have to give up when they sell a book to a library, there's no effect on moral rights either. The content could be read, still can. So it's only really an issue if you think there's something really important about reading the content from paper because there are going to be no extra readers as a result of this project and I will just recapitulate for a second. It's important to do this because our mission is to find out how best and to create the best ways of getting works to the relevant audiences, especially scholarly ones but other ones as well. By doing this kind of work we can learn a lot more about bibliographic indeterminacy which is really important. Of course we should be doing this work in conjunction with people who are or might be rights holders because in the end we're going to have to figure out how to reconfigure the cluster of rights out there that's in digital work so we can take maximum advantage of this marvelous digital world that we live in and these great numbers of scans that we have and that is what we're up to and I think in the same sense that fly fishing is God's work, it's God's work. Thank you. Good morning. It's truly a pleasure to be here this morning and let me just start by saying it is an honor for me to share the stage with two leaders in our community that I admire, Paul Courant and Jonathan Band. My topic this morning is due diligence and undue diligence. Due diligence is a legal standard and principle that underpins and underlies many aspects of the law but in particular is central to our understanding of orphan works. It's particularly important in the absence of any U.S. statute or legislation and so what I'm going to do today is go through the principles and the legal standards of due diligence. Betsy already went through this and I think this is not news to anyone but I just want to start with the definition of what an orphan work is. This comes from the U.S. Copyright Office but it's also pretty much the standard definition and as you can see we're looking to both identify and locate copyright owners in order to seek permission. Currently as I said there is no U.S. statute or legislation but I think we can all imagine what it would look like or likely look like if we look at the 2008 Sean Bentley Orphan Work Act which was passed in the Senate. This act has a couple of attributes that are in every single orphan work act that does exist both in the EU and for our Canadian friends and colleagues in Canada as well. The elements of all the orphan work legislation, statutes and frameworks that exist all require a diligent effort to locate the copyright owner that's both reasonable and appropriate under the circumstances and I'm going to go through with the legal definitions of both reasonable, appropriate and the due diligence are. All the statutes require and all of the activities are always going to require record keeping to reflect what we've been doing and the Sean Bentley Act as well as the other frameworks do all include an explicit mention of best practices and so I want to say now and I'll say it again at the end that the Mellon funded American University ARL code of best practices is going to be critical to us along with the other ones. This is what the statutes will look to, this is what the courts will look to and this is what the work is that we need to do and that is already undertaken. The Bentley Act also went on to explicitly include some limitations on liability that are really critical to our community and it's important to note not all uses are the same, not all users are the same. The Bentley Act along with others clearly distinguishes between commercial use and non-commercial use. It's important to note for us and remind ourselves we in general, our uses are about our mission as Paul said, our uses in general if not exclusively are non-commercial educational uses. The Bentley Act, others, the EU framework, the Canadian framework makes a clear distinction between uses and users for commercial purposes and users and uses that are primarily educational, religious and charitable. There are many of you in this room that actually can be more than one of these, can fit into every one of these categories and in some ways you might get to that godliness and saint-like type of use. The other thing that the law requires and every one of these statutes require is that there is and we all do this already some type of invitation for the rights-holders or the owners or the alleged rights-owners or holders of these rights to come forth and tell us and when they do we will always and the law has required that we will investigate and we will take it off of a public view. Paul went through this and I just want to kind of do a little bit more about what the challenge is about orphans, what the scope of the orphan challenge may be. It's interesting to note, this is a quote actually and I have quotes around it from the Copyright Office in 2006 where they stated the orphan works problem is real. They couldn't quantify it in 2006 except for the fact that they did receive over 700 written comments, they had a number of meetings in different parts of the country, all kinds of folks showed up including thank goodness those of us from the Library Archive Museum community talking about how central this was to us and how important it is to our mission, but in 2006 they couldn't quantify for us how big of a problem it was, they just knew it was a problem. So thanks to John Wilkin and some other folks now there's some numbers that we're throwing out and the numbers are significant. So 50% of the volume is in the haughty trust. I mean give or take a little indeterminacy, that's still going to be a big number. Duke Center for the Public Domain says majority of the record of the 20th century. Michael Karn says almost 600,000 published books and you could read the rest, but it is a significant issue and the Copyright Office was right and we all know the problem is real. This is a list of some of the types of material and types of collections that we all hold that can be orphaned. How many of these areas in contrast in some ways to publish books represent research libraries and academic libraries most unique content? Okay and if you go back for one moment to this slide about the scope and the challenge of the problem then think about this, think about every one of these as a potential lost opportunity for use in teaching or research and in aggregate it does represent a locking down of knowledge. Which brings me to where I always like to actually start which is about our mission and I think Paul went over this really well. I think the standard kind of quote about what the mission is of higher ed would be teaching research and in the case of my institution which is public service, I want to call out though that stewardship and dissemination of knowledge in the scholarly record is critical to meeting those mission critical objectives. I love this quote from Robert D. Lee because it emphasizes the importance of access and use in ensuring that the mission is achieved. That's clearly why we all care about the orphans. You're going to hear me say a couple of times context is critical to our understanding, discussion and ability to make use of the orphan works. I also just want to note and remind everyone in this room that courts and cases have found making available entire work, copies of entire work is permitted under, as you can see, a long list of available statutes, exceptions, et cetera, face to face teaching, services for the visually disabled, fair use, the library and archive exception, et cetera, et cetera. I also just want to take one moment and highlight a case that I think is really important because again, this is a situation where for those of you that may not know Bill Graham archives case is one where a commercial coffee table book was made from the art that was used for rock concerts in 60s, 70s and 80s and I'm sure many people in this room all attended and appreciate. Some really creative visual work that in some ways gets the most copyright protection that some of us are really concerned about when people ask us, make copies of all these images in our collection, but here's a case that took copies of entire work, put it in a book, but highly recontextualized it, put it on a timeline, added a lot of other value, added a lot of commentary, added a lot of context, and the court found, even though they did reproduce entire works, visual works, belonged to many folks, that that was a fair use because of the recontextualization that was done. The Library Copyright Alliance did a great brief about recontextualization. Just want to remind folks that there are a number of ways that we can approach making orphan work available. I think it's really important, as Paul said, to keep our eyes on the prize because it's all about the mission and we really need to frame when we're thinking about orphans, thinking about the use that we need to provide to our teaching faculty, to the students, to the research community to not give up and to really remind ourselves that this is the frame that we need to use when we're looking at these kinds of issues. Okay, due diligence. Here's the definition. And what you see in what I'm highlighting here is about the reasonable and prudent person under the circumstances. Again, this is a context-sensitive, fact-dependent determination. This is not a bright-line rule. There's not one rule that applies to all the kind of situations you face and that we face. You've got to look at it in context. It's not a one-size-fits-all. Sorry, there's a typo in this. It should say differs across sectors because, in part, in the EU and with our own best practices work, there may be, in fact, different diligence that will apply when you're talking about audiovisual work versus published work versus unpublished work. So it's not one-size-fits-all. It does involve a duty of proper care and, in my view, it is all about stewardship. Just to give you a teeny sense on the long-tail history of reasonableness in terms of the law, in my view, it starts with Aristotle. Aristotle was concerned about what the moral virtue of a person was. It had to require a mean. It wasn't a person of extremes. A judge learned hand developed a formula. So B is burden for those of you that don't know the learned hand formula. B is for burden. P is probability. And the L is injury. I don't know why I didn't use an I. And what that means for those of you that can't just do the math right there is that the reasonable person analyzes the costs and benefits of her actions and does not act in such a way as to impose costs that are not justified by their benefits. Okay, let's learn it hand. Justice Holmes is probably the justice most known for his articulation of the reasonable person's standard. And you can see the definition here. But again, it's not about the fringe. It's not about the extremes. It is about what is reasonable under the circumstances. Circumstances may change. And I also love this quote from Holmes that the law does not attempt to see men as God sees them. So godliness is not the standard even for Paul. Or especially for Paul. One minute, okay. From the copyright office again, I used the same kind of criteria that I've stressed before. So again, it's dependent. It's fact dependent. It's context dependent. The UCC defines good faith. And this is important because the Bentley Act and all of these frameworks require a good faith use. The UCC says good faith is a relative standard, but they do define bad faith. And this is really important for this audience, I think, because all of you read the UCC on a daily basis. You may not be familiar that there actually is a definition of bad faith. Okay, so bad faith requires dishonest conduct. No one in here would ever have dishonest conduct. But more importantly, the mere failure to make an inquiry will not typically constitute bad faith. A couple of examples in wrapping up. A couple of examples of undue diligence. In my view, this is the exception. This is exceeding. It's beyond what's reasonable is where we focus on the fringe rather than the core. Again, I think the ARL Mellon-funded Code of Best Practices research with folks and the focus groups did find that even folks in our own community sometimes focus on the fringe hypothetical what-ifs that aren't the situation just in front of them. They're overly concerned about any uncertainty or ambiguity. There will always be some. And in my view, that undermines our ability to fulfill our mission. The next steps, again, I think, come from that Mellon-funded ARL report. And so it says that library directors can make the world a better place by engaging together, which also is the theme of this meeting, because it's through collaboration we will gain capacity. And in closing, in the immortal words of Ben Franklin, I do think we need to do this, but not just because we want to avoid legal liability. In fact, that's the least important part of it. But it's because by working together and collaborating together, we will gain capacity and achieve our fundamental mission. Since some people consider, in keeping with the religious theme of this panel, some people consider PowerPoint to be the devil's work, I will avoid that for my presentation. So what I'm going to do is spend the next 15 minutes or so talking about the lawsuit that was filed to just give a quick analysis of some of the legal issues. And I think the only way to describe this lawsuit is that it is very peculiar. And it is peculiar on many levels. And so without kind of getting too legalistic, I'll try to walk through some of the aspects of this lawsuit that are so peculiar. So you have to start at the beginning with the plaintiffs. And there's peculiarities of the plaintiffs. So we talk about the author's guild bringing this copyright infringement action. But the author's guild doesn't own any copyrights. Also some of the other parties involved in the action are an association of Quebecois authors. And there's an association of British authors. And now there's an amended complaint. Some additional parties have joined in. So Australian authors and so forth. But all of these associations that have filed suit they don't own copyrights or they don't own any of the copyrights that issue conceivably in this lawsuit. So that raises a real question of standing. And there is a doctrine that you only can bring a lawsuit if you have standing to bring a lawsuit. And in the copyright area it's very complicated. And the general notion is that it is hard to bring, it's hard for associations to establish standing. And indeed, in the UCLA case that just got dismissed, this is the case of Ambrose Entertainment against UCLA, the trade association that Ambrose is a part of, video distributors, the court actually found that they did not have standing to bring the case. Ambrose had standing but the aim, the association, did not have standing and the court dismissed the complaint as to aim. And so in this case there are some individual plaintiffs that are in the action. They conceivably would have standing, but I'll get to that in a minute. But the associations, the authors' guild, very likely does not have standing to bring the case. Now even with the association, with the individual authors, to the extent that the case deals with orphan works and we'll get to that in a minute, but to the extent that the case deals with the orphan works project that Paul mentioned, those individual authors don't have standing unless their books are among the orphan works. So to the extent that that's what the case is about, they shouldn't have standing either. So in other words there are very serious standing issues of plaintiffs bringing this action. Now let's turn to the defendants. The defendants right now are HathiTrust plus five of the members, five of the universities that are participating in that. Four of the five are state institutions and so would be subject to sovereign immunity. And the fifth Cornell is kind of quasi-public-private and so who knows what their status is. But any event, at least as to the four institutions, the lawsuit should be dismissed and then there's even a question of HathiTrust and what exactly its status is. Perhaps it too would be considered a sovereign entity and the case could not go forward. What's odd about this issue is that it would have been very easy for the lawyers bringing the action to sort of circumvented that problem just by naming the correct plaintiffs and I'm not going to correct defendants, I'm not going to tell them who the correct defendants would have been. But that would have been an easy problem and again even in the UCLA case, the way they got around that they just named everyone they could think of including some people on this panel and the court dismissed the case as to some of the plaintiffs because of sovereign immunity but with respect to some of the defendants with respect to sovereign immunity but not with respect to other defendants. Here for some reason the lawyers did not name all the logical parties that should have been named but named the ones that clearly shouldn't have been named. So again very peculiar. Turning briefly to the substance which in many ways is less legalistic and more perhaps interesting to this group. Again, there's two substantive peculiarities about this case. First, and this is really an important point to stress, the case is not just about orphan works even though that is what we're talking about here and that is what a lot of the press attention has focused on. In fact the complaint is targeted at the Hathi trust as a whole. It really focuses on the infringing activity and the complaints mind begins sort of the minute those files were transmitted from the partner libraries to Hathi trust and sort of copies were made on the Hathi trust servers and then there was a mirror copy made at the University of Indiana. So it is focusing not just on the orphan works but all of the sort of internal copies that Hathi makes. What's again odd about that is that that's been going on for several years and so you would maybe not within the time frame of the statute of limitations but certainly from a latches point of view which is the fact that it's a legal doctrine that cases need to be brought in a timely fashion. I mean Hathi has been operating in a very open fashion for again several years and much of the complaint is focusing on those activities and so again it's sort of peculiar why bring a lawsuit about that broader activity at this point, again peculiarity. And the final peculiarity I want to talk about is certainly from a legal point of view it's clear the legal issue here is fair use. Are these copies whether all these internal copies that Hathi makes when it gets the digital files from the partner libraries and all the server copies that are made in that context the question would be are those copies all fair uses and then to the extent that there's going to be an orphan works project or other projects that Hathi might at some point want to engage in would those be fair use copies? So clearly this is really about fair use. Well the complaint sort of says fair use doesn't apply and it's theory as to why fair use doesn't apply is it says well in the copyright act there's this section 108 which is the exception for libraries but it says section 108 sort of defines the entirety of how copyright law applies to libraries and in fact it is a pervasive regulation of libraries in the copyright act and that libraries cannot do anything beyond what is permitted in section 108. It clearly that's what the complaint clearly says. However section 108 F4 which is part of 108 explicitly says that nothing in this section shall limit the right of fair use for libraries and it does use that term right of fair use not privilege, not exception, not defense, right. It's in the statute. So the section 108 itself says that 108 doesn't limit the applicability of fair use to libraries nonetheless the complaint does take that position. So again it has this peculiarity. Now that's not to say that there aren't serious issues here that reasonable people can disagree about. Certainly there are but again the way this case has entirely been framed in the complaint you know the peculiarities in terms of the plaintiffs the defendants and the substance just really makes it like I said very very peculiar. Thank you. Thank you for listening. Music was provided by Josh Woodward. For more talks from this meeting visit www.arl.org