Book digitization and copyright

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An article in today's New York Times ("Libraries Shun Deals to Place Books on Web," by Katie Hafner) reports that many libraries are reluctant to subscribe to Google's program to digitize books and upload them to the Internet because they don't like the idea that one commercial enterprise might control so much information content, and because Google's agreements have been somewhat restrictive. Instead, some libraries are signing on with the Open Content Alliance, a nonprofit effort. There are copyright implications to these projects, of course. The article doesn't mention the lawsuit filed against Google by the AAP, but it does say that most efforts to digitize print are aimed at books in the public domain, and that Google plans to provide limited access to materials that are still protected by copyright. Open Content Alliance plans to concentrate on materials in the public domain, but the end of the article says something curious. Internet Archive, which appears to be a parent organization to Open Content Alliance, has announced "that it would start scanning out-of-print but in-copyright works to be distributed through a digital interlibrary loan system." Copyright duration is not determined by availability. In sec. 108, limitations on the rights conferred to copyright owners in sec. 106 anticipate that libraries will not reproduce works if the reproduction is systematic. It must be "isolated and unrelated." Clearly, establishing a central repository of copyright protected works for interlibrary loan purposes suggests a systematic effort. There are at least two other problems with this scheme. Needless to say, the Internet Archive will find at the wrong end of an infringement suit before too long.