This new report is accessible on the ARL server and was prepared for the Library Copyright Alliance by lawyer/IP expert Jonathan Band. The Library Copyright Alliance is made up of of the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries.
The 28 page Review Begins:
In October 2006, I wrote a memorandum explaining that two district court decisions, Field v. Google, 412 F. Supp. 2d 1106 (D. Nev. 2006), and Parker v. Google, 422 F. Supp. 2d 492 (E.D. Pa. 2006), provided several viable legal theories permitting libraries to engage in website archiving – in particular, fair use.1 The memorandum concluded that these two district court opinions from different circuits provided a solid basis for arguing that copyright law permits libraries to archive websites.
Developments in the fair use jurisprudence since 2006 confirm this conclusion. A central issue in the fair use analysis is whether the use is “transformative.” Campbell v. Acuff-Rose, 510 U.S. 569, 579 (1994). In the website archiving context, the question is whether a library’s reproduction and subsequent display of entire websites without material alteration is “transformative.” The case law and legal opinions discussed below all indicate that library website archiving for the purpose of preservation and scholarship is transformative as that term is used by courts in the fair use context.
See Also: “Golan v. Holder: A Farewell to Constitutional Challenges to Copyright Laws”
Also written by Jonathan Band. Posted on February 7, 2012.