Author’s Guild Seeks Partial Judgment on Hathi Trust’s Fair Use

"In the ongoing litigation between the Hathi Trust and the Author’s Guild over the Trust’s book digitization in partnership with Google, the Guild filed for partial judgment on the pleadings on February 28. In essence, the Guild claimed that the Trust and five of its 60 member libraries and institutions are infringing because some of their book digitization activities “are wildly exceeding” those defined in section 108 of the 1976 Copyright Act. (Despite the involvement of Google, this case is separate from the Guild’s long-running lawsuit against Google Books.) But while the Hathi Trust has not yet filed its response, library advocates are already contesting the Guild’s assertion on several grounds, including the “savings clause” of section 108, which explicitly states that nothing in section 108 “in any way affects the right of fair use as provided by section 107.” James Grimmelmann, associate professor, New York Law School said in his blog, “The only way the Authors Guild can get around the enormously high factual burden facing it at this procedural stage is to make a purely legal argument: that failure to comply with Section 108 categorically prevents reliance on fair use, across the board, no factual questions asked. But here, even its own sources betray it.” The 1983 Copyright Office report cited by the Guild says that fair use is “often”, but not “always”, unavailable as a defense...."