Hathi Lawsuit Has Far-Reaching “Fair Use” Implications

This is somewhat dated, but “Fair Use” is always an issue, and for this reason I’m presenting this material involving the Hathi lawsuit that was originally filed by the Authors Guild and abandoned last year.

The Hathi lawsuit is complex and I wouldn’t expect many writers to be aware of the case, but it has far-reaching implications since it involves the copying of material in compliance with Fair Use laws.  This suit was filed against HathiTrust for its extensive use of text without an author’s permission.  The bulk of this copying of material occurred during the “Google Books Project,” but since Google was trying to sell the author’s book in question—some might contend that this hardly constituted a bad thing.  At issue, however, was that Fair Use allows a university to copy an entire narrative, with impunity.  And does this not enable a student to read the entire draft, with this having nothing to do with scholarly endeavors?  It doesn’t require an I.Q. in the range of Dr. Hawking’s to figure this one out, but it does once again go to the heart of what constitutes Fair Use, and therefore what an author is deemed to have placed in the public domain–which means material provided for all to read sans any form of royalty.

We could all go round and round with this for years and never reach a conclusion that would satisfy all parties (or any of the parties, for that matter), but the Hathi ruling once again begs the question regarding what is considered too much of an author’s work that can be provided for free.  I certainly don’t have the answer.  One could suggest a percentage. However, how can that be applied to a scientific work when each page is crucial to the whole?  Or a fixed page count, regardless?  But does that page count start from the beginning or pick up in the middle? or can the pages be taken out of sequence and used as long as they don’t violate the total prescribed by formula?  Again, I have no answer.  But I don’t believe that an entire body of work should be used, as desired, without some form of author compensation.  Perhaps an idea to consider would be to charge a college at a rate in line with what mainstream publishers charge libraries, but with a different metric.

The last time I checked, a standard library hardback was lent an average of 26 times before it was considered no longer serviceable, and libraries were charged approximately 4 times a book’s standard wholesale (hence, $64 instead of $16).  I’ve always believed that libraries should be given a break and not surcharged, but I’m biased toward this reader service.  Since more and more of what a college student reads is of a digital nature, hence there’s no reduction in resolution, etc., maybe the current number for copyright protection of 75 years should be applied to material used for free by universities.  At today’s wholesales for softcover, a college would pay approximately $1,200 for an author’s work ($16 times 75 years), and I suggest that’s not out of line, as this would allow for unlimited access by any number of students, and there would be no theoretical constraints regarding content–all of which is currently being done anyhow.  And, please, don’t write me about how this would raise college fees.  I’m sick of what students and parents are forking out today, but it’s the books that drive the tractor, and those who plant the crops need to be compensated.  No corn, no need for tractors–and this reality must not be lost in the translation.

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