A law practice in is litigating a case. They have contacted us asking for all relevant materials.
We have provided considerable materials from our records and archives, however, we have stopped short of providing a full digital copy of a book that might still be under copyright (based on publication date).
If they sent a representative to our archives, we would allow them access to the book. They would be able to read it and even make their own copies of relevant sections. I believe this is covered under the "fair use" provisions of the copyright law(?).
However, this is not the case, they want us to send them a full digital copy version of the book and I don't believe this is permissible under "fair use" or any other clause. What is your understanding?
Aside from my general admiration of libraries, one of reasons I relish “Ask the Lawyer” is the chance to answer questions that might never otherwise come my way. This question is one of those!
Could duplication of an entire copy of a work for use in a court case meet the requirements of Fair Use?
Case law says… yes, it could. In a 2003 case [1], a court found that duplicating an entire copy of a plaintiff’s autobiography, so it could be submitted as evidence of his bad character (he admitted to intentional homicide), was a Fair Use. In 2014, it was found that duplication of extensive content from a blog, introduced as evidence of an alleged ethics violation, was Fair Use.[2] And back in 1982, bootleg copies of erotic films, created to bolster a nuisance claim, were also found to be “fair.” [3]
These cases, and others like them, draw from legislative history and precedent stating that the reproduction of copyright-protected works for litigation or other judicial proceedings often meets the “Fair Use” criteria. So…the lawyers who have made this request of your archives, if they make this copy, should be able to defend their actions.
That said, Fair Use depends on the complex interaction of four separate “factors” which in this case will largely out of the library’s control. What if the firm posts the content online? What if it is used in PR material related to the case? As a part of the chain of duplication, the library could then be implicated in an action based on a use not previously disclosed to them.
The right of libraries and archives to make whole copies, without worrying if the Fair Use criteria are met, is governed by Section 108 of the Copyright Code. Section 108 provides a precise formula for making—and providing—one hard copy of a published work:
[T]hat the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;
AND
[That] the library or archives has first determined, on the basis of a reasonable investigation, that a copy or phonorecord of the copyrighted work cannot be obtained at a fair price;
AND
[That] the copy or phonorecord becomes the property of the user, and the library or archives has had no notice that the copy or phonorecord would be used for any purpose other than private study, scholarship, or research.*
Applying these criteria is tough. While the advantage to be gained from the duplication is unlikely to be a direct “commercial advantage” (although perhaps there will be a commercial benefit to the court case), is the proposed use for litigation “private?” Can it be determined if another, commercial copy is available? Further, the request that it be in digital format speaks to ease of further duplication, and this part of 108 is not about format-shifting.
The bottom line: unless you are satisfied that this “108 criteria” are met, since the Fair Use factors will be out of your archive’s control, the best bet is just what you suggest: let the attorneys make the copy themselves!
*NOTE: Different criteria would apply if this work was unpublished, or if the duplication was for preservation or ADA access purposes.
[1] Bond v. Blum, 317 F.3d 385 (4th Cir. 2003), cert. denied 540 U.S. 820
[2] Denison v. Larkin, 64 F. Supp. 3d (N.D. Ill. 2014)
[3] Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982)