The following are posts that I have made to two of Professor Grimmelmanns topics on Laboratorium.net : 1. http://laboratorium.

net/archive/2012/10/10/hathitrust_wins HT Wins & 2. http://laboratorium.net/archive/2012/10/13/hathitrust_a_landmark_cop yright_ruling HT Landmark I have edited these posts only for a few minor corrections and to remove the names of a few other posters whose posts are provided or referenced for context. I have re-arranged these posts into some reasonable sequence. I also included at the end my posts to LibraryJournal.com on the Authors Guild v HathiTrust Opinion & Order and a few incidentals. However I will add this additional observation of my own here: There is nothing to indicate in the totality of Section 107 that there could be a set of circumstances for which 'fair use' would apply to a Party A but under the same set of circumstances not apply to a Party B. Please note that on posting to Scribd.com Hyperlinks are inactive.

October 11, 2012 at 12:36 AM HT Wins john e miller

I have made several comments posted on Laboratorium.net not as to who is and who is not an Authorized Entity. I simply stated that the HathiTrust and the UMichigan Library have never bothered to say on their respective websites Mission & Goals pages that amongst the many other stated missions & goals one of their missions & goals IS in fact to assist those persons with a print disability. Also that in NFB President Dr. Maurers written testimony to the US Copyright office in 2009 that there was no authoritative support as to the NFBs contention as to who was and who was not an Authorized Entity under Section 121. From AG v. HathiTrust Declaration 149, Page 9, NFBs attorneys state: In short, NFBs proposed definition (of an Authorized Entity) does not at present encompass any additional existing entities beyond the University Libraries participating through the HathiTrust. Judge Baer writes on page 22-23: The ADA requires that libraries of educational institutions have a primary mission to reproduce and distribute their collections to print-disabled individuals, making each library a potential authorized entity under the Chafee Amendment. So far, only UM has made its works available to print-disabled individuals I conclude that UM has a primary mission to provide access for print-disabled individuals, and it is consequently an authorized entity. So by this ruling and the word potential has Judge Baer provided authoritative support as to who is and who is not an Authorized Entity or has the Judge ruled in the single instance of the University of Michigan (UM) Library and not even necessarily those libraries participating (as above) in the HathiTrust nor the HathiTrust itself? October 14, 2012 at 5:25 PM HT Landmark

john e miller Some highlights from my comments to Prof. Grimmelmanns article as above (awaiting moderation at PW): If a public or private institution is under the mandate of the ADA to provide equal access to copyrighted materials, whats the difference whether such use is considered fair use or not? Does this now mean under fair use provisions that anyone can provide a copy of a book to a person who is disabled when that person who is disabled does not already own his/her own copy of that book without any substantiation as to whether that person is truly disabled or not thus entering the realm of handicapped parking placards? (italics added) If the first 2 claims hold true, whats the difference whether the University of Michigan is deemed an authorized entity or not? Added note from Opinion & Order p23: Defendants may certainly rely on fair use to justify copies in the event that they are not authorized entities.

October 17, 2012 at 4:09 AM HT Landmark john e miller

I will go out on a limb here I think the Opinion & Order would have been much simpler if Judge HB had merely stated that any institution of higher learning that has students within its population with a print disability that require accessible renditions of copyrighted material should as a matter of course and as a de facto primary mission provide such access to copyrighted material as an authorized entity under the Section 121 Chafee Amendment.

I think agreeing with the NFBs multiple positions as stated in Document 105 brings unnecessarily into the issue matters regarding fair use and requirements under the ADA. The ADA issues have never been mentioned heretofore as specific requirements of the ADA although Senator Chafee himself was a cosponsor of the 1990 ADA and principal sponsor of the Section 121 Amendment bearing his name. The oft quoted however rarely quoted in its entirety HR 94-1476 page 73 (1976) says in the last sentence regarding the making a single copy as a free service for a blind person being properly considered a fair use under section 107 may be misinterpreted. It says in that same paragraph that the NLS of the Library of Congress was still required to obtain permission from the publisher before doing just that. One could interpret that the free service for a blind person could be referring to making a Braille or phonorecord copy of a book that such person who is blind has previously purchased or been gifted a hard-copy version and that accessible copy is the one being referenced as fair use under 107. A fact sheet issued by the American Library Association (ALA) says that there are about 104,000 academic and school libraries in the USA. I wonder whether the late Senator Chafee would consider such a number congruent with his statement regarding authorized entities in his 1996 Senate Floor remarks that It includes a very narrow definition of those who are eligible to undertake such production

October 11, 2012 at 3:59 PM HT Wins john e miller

From the floor remarks of Senator John Chafee as noted in The Congressional Record dated Monday, July 29, 1996, Senate Section: Frequently, the National Library Service issues request after request only to wait months for a response from the publisher. These delays are not because the publishers have a desire to withhold permission; it is simply a low priority. They just set it aside. There are still 17 books from the 1995 best seller list for which permission is still pending Added time consumed by trying to get permission from publishers makes it certain that the blind student is not in sync with his classmates. Why did the NLS and other institutions until the 1996 enactment of Section 121 have to wait months for a publishers permission to make an accessible rendition of copyrighted material? To read Judge Baers opinion at III., all they had to do even prior to 1996 was say that it was fair use and their obligation under the ADA (1990) and the Rehabilitation Act (1976) to make such accessible copies available to persons with a print disability. From Note 20, Page 15 of Judge Baers ruling: The ADA also provides strong support for the conclusion that the provision of access to print-disabled persons is a protected fair use. I hope if there ever would be a legal action challenging whether a US Authorized Entity can export (especially to lesser-developed countries) specialized format renditions of copyrighted material under Sections 121 & 602 of The US Copyright Act as was claimed in a written response by the US Copyright Office itself to a World Intellectual Property Organization (WIPO) questionnaire Judge Baer is assigned the case.

October 11, 2012 at 9:47 PM HT wins

john e miller

From JG above: But the present case involved distribution only to a small number of UM students. From NFB.org Press release 11OCT2012: As a result, the University of Michigan will now be permitted to make its entire 10 million volume digital collection available to all blind Americans, revolutionizing access to digital books by the blind and print disabled. PR Newswire http://s.tt/1pOJy October 11, 2012 at 10:02 PM john e miller HT Wins

As per the mention above of print disabled in the NFB Press release, the following comment was made by the Royal National Institute for the Blind (RNIB) to the UK Intellectual Property Office: Many people with disabilities who are excluded from the current exception do need accessible format versions of a work in order to read. RNIB therefore supports a broad definition along the lines of the Right to Read Alliance definition of print impairment, i.e. which covers the estimated one in eight of us who cannot read standard print due to sight problems, dyslexia, or a disability which makes it difficult for us to hold a book or turn a page. So much for the small numbers UK, USA, or otherwise.

October 13, 2012 at 5:55 AM HT Wins

john e miller

From Judge Baers Opinion-&-Order page 22-3: The ADA requires that libraries of educational institutions have a primary mission to reproduce and distribute their collections to print-disabled individuals The term primary mission does not occur in the text of the AMERICANS WITH DISABILITIES ACT OF 1990, AS AMENDED (2008) October 13, 2012 at 6:03 PM HT Wins john e miller

From Mr. JR above: You dont need to be a Chafee amendment authorized entity to exercise your fair use rights. The Chafee amendment authorized entity is just icing on the cake for HathiTrusts case, in the judges legal opinion it seems not even to be required. So what you are saying, maybe, is that all those attorneys from congressional staffs, the AAP, the NFB, the Library of Congress, the US Copyright Office, etc. who worked on the drafting of the 1996 Section 121 Chafee Amendment including as in the floor remarks I quoted above the late Senator Chafee himself just didnt realize at the time that such legislation was totally unnecessary as any person who wanted to create a specialized-format copy of copyrighted material for the benefit of a person who is blind (as in the 1976 House report) could have done so without the permission of the copyright holder pre-enactment of the 1996 section 121 legislation and without regard to that pesky Authorized Entity qualification?

October 13, 2012 at 6:31 PM HT Wins john e miller

The following is excerpted from National Federation of the Blind (NFB) Press release upon the enactment of the July 29, 1996, Section 121 Chafee Amendment: Important Notice on Copyright Changes When the legislation is signed by President Clinton, which is expected, the changes in the copyright law resulting from the Chafee amendment will go into effect immediately. This will mean the following: The permission of publishers or copyright owners is now not required if an authorized entity reproduces or distributes a nondramatic literary work in a specialized format for the exclusive use of blind persons or others with physical disabilities. The important, bottom line result of the new legislation is that the copyright permission process is now a thing of the past. The procedures and delays involved in securing copyright clearance are also now in the past. In the short run, this should mean much faster service for readers. As for the future, the Chafee amendment will very likely prove to be crucial as the national information infrastructure evolves.

October 13, 2012 at 11:13 PM HT wins john e miller

The part of the Opinion-&-Order that deals with a potential authorized entity which as much of Judge Baers ruling on issues raised by the NFB as Intervening Defendants comes nearly verbatim from the NFB Document #105 MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT. It kinda reminds me of the old legal saw about being a little bit pregnant.

October 15, 2012 at 5:01 PM HT Wins john e miller

Thats OK (RK) Ive developed a tough skin in this legal copyright realm. I am well aware that Judge Baer can issue any kind of order he so chooses without regard to what Congress has said but that HIS rulings are still subject to review by appeal. And to respond in part as to why I may be one of those fired up over the current ruling, I think that parts over the ruling will relegate copyright exemptions and fair use for the visually impaired to the realm of handicapped parking placards and to diagram the gist of the ruling regarding fair use, ADA, Chafee, 1976 Copyright Act House Report, etc. would resemble a Rube Goldberg cartoon. (italics added) October 15, 2012 at 5:11 AM HT Landmark john e miller

The HathiTrust Library Consortium began in OCT 2008. However, many of the HathiTrust member libraries have extensive collections of

digital materials even prior to that year that they have made or will make available to the HathiTrust. Partnership Community http://www.hathitrust.org/community For example, from the Hathi Trust website above: The (Arizona) University Libraries holdings include more than 5.8 million books (18% electronic), nearly 70,000 serials (94% electronic), and more than 195,000 digital items in campus repository collections. or .. (Texas A&M Library is the) Universitys principal research and information center, providing 4.1 million volumes, 5.7 million microforms, 91,580 print and electronic serial titles, 557,777 electronic books and more than 600 databases. So by the current Opinion & Order many of those Hathi Community libraries as they have extensive digital holdings have been in violation of ADA Titles II. (public institutions) or III. (private institutions) for years. Why did the NFB wait until late 2011 to make their claim that such institutions have a mandate under the ADA to provide materials to those students and maybe to other persons who are blind or have a print disability. The NFB attorneys stated in their Motion to Intervene Item 25: (Further,) requiring the University Defendants to argue that a decision for the Plaintiffs would violate the Proposed Intervenors rights under the ADA would place those defendants in a precarious legal position: The University Defendants are responsible for ensuring that they do not violate Title II or Title III of the ADA, If the Plaintiffs were to prevail in this action and the Proposed Intervenors were required to institute a second lawsuit to ensure access to digital materials, the University Defendants could be the defendants in that action, Any admissions they made in this suit to the effect

that preventing access to a digital library collection would violate the ADA would bind them in that suit. The lead attorney for the NFB told the NFB Convention in 2008: When a company believes that its existence in cyberspace immunizes it from the ADA, but it provides services to schools and universities, then well sue the schools and universities under the Rehab Act to let the businesses know that, if they want to discriminate, we can destroy their business. So what about the HathiTrust universities that maintain their own extensive library digital files who by the ruling from last week have discriminated and been in violation of the ADA and Rehab Act for years? Why has the NFB never taken any action prior to the suit taken by the Authors Guild against the Hathi Trust consortium? Why havent they already sued Hathi Consortium Members Harvard, or The University of Virginia, or The University of Maryland or Johns Hopkins both in NFBs own backyard in Baltimore? (Note: see BONUS LibraryJournal.com comment below re: Johns Hopkins University in Baltimore, MD) October 23, 2012 at 4:13 AM HT Landmark john e miller

As note to LHs comment above, the following is from the website of the University of California Press: Print-Disability Policy It is the policy of the University of California Press to provide electronic files of adopted textbooks that have been assigned to the print-disabled. We will provide such a copy free of charge upon receipt of a formal request on letterhead from the

students campus disability service office Please verify that the student has purchased a copy of the book. October 26, 2012 at 11:14 PM HT Landmark john e miller I just listened to the ARL interview with the 4 HathiTrust-side attorneys. It makes no sense to say what a library or an educational institution can do regarding section 107 fair use accessible copies for a person who is blind or print-disabled; if they can do it, anyone can do it. Definition of a person who is print-disabled under Section 107: Anyone who says that they are print-disabled.

October 28, 2012 at 2:24 AM HT Landmark john e miller

The following is my transcription of the comments made by the National Federation of the Blinds (NFB) chief outside counsel to an ARL interview featuring 4 attorneys involved with the case but not the HathiTrust attorneys themselves: http://www.youtube.com/watch?v=FTuxXGEYvvQ 24:20 The universities did not object to (the NFBs) intervening because they realized we could with far greater authenticity and knowledge make the argument that digitizing print books so that they can be made available to blind scholars is a fair use and a compelling one 24:26 So thats where the ADA plays into this case. It legitimated the creation of this corpus this digital corpus because it was done with the intention of meeting civil rights

obligations and that legitimate use translated very easily in the judges mind to a fair use. So if the digitizing of the HathiTrust was done under Civil Rights obligations, whats the difference whether it was fair use or not? and if the Civil Rights obligations legitimated the entire digitization project, but on appeal such Civil Rights obligations are undermined, where then stands the legitimacy of the HathiTrust digitization project? And this final comment awaiting moderation: One more from the above ARL YouTube video in terms of the universities making accessible copies of copyrighted materials available to ALL persons with a print disabilities and not just their own students/alumni: 27:17 and if the universities make use to the Chafee distribution scheme and put it into the Chafee pipeline If the making of such accessible copies has already been determined to be fair use why would the Universities have to bother with the pesky requirements of the Section 121 Chafee Amendment?

****

And as a BONUS, this was my post at LibraryJournal.com for the article by Kevin L. Smith, Esq., of Duke University, 18 OCT 2012: Why Are Some Publishers So Wrong About Fair Use? | Peer to Peer Review 1. john e miller says: October 18, 2012 at 10:14 pm

The current Opinion and Order by Judge HB states on page 22: The provision of equal access to copyrighted information for print-disabled individuals is mandated by the ADA and the Rehabilitation Act of 1976. The website of The Sheridan Libraries of Johns Hopkins University currently states: The Eisenhower Library is the universitys principal research library and the largest in the Hopkins library network, which includes specialized facilities and collections in medicine, public health, music, international affairs, and earth and space science. In addition to more than 3.7 million books, the libraries provide 24/7 access to a rich collection of electronic resources, including over 171,000 print and e-journals, and more than 900,000 e-books. The library also offers an extensive array of electronic resources, including full-text books and journals, specialized databases, and statistical and cartographic data. http://old.library.jhu.edu/about/overview.html The website also states under Services for Persons with Disabilities: The Eisenhower Library provides a variety of services for patrons with disabilities. Two scanners for converting a written document into an electronic file are available in Government Publications/Maps/Law Library, A-level. http://old.library.jhu.edu/services/disabilities/index.html .. However, none of the listed services for Persons with Disabilities extend to the making of accessible copies of copyrighted materials for persons with a print disability as Judge HB has now mandated under the ADA most listed services deal with access to the library for persons utilizing wheelchairs.

So, by the Judges Order as it currently stands, The Sheridan Libraries of The Johns Hopkins Libraries and the Sheridan Dean of Libraries Mr. Winston Tabb current President of The Association of Research Libraries (ARL) may be in violation of the Americans with Disabilities Act. et tu Duke? Note: Of all the Defendants including The Universities of Michigan, Indiana, Wisconsin, & California; Cornell University and The HathiTrust itself The Opinion & Order states p23 : So far, only UM has made its works available to print-disabled individuals Reply 2. john e miller says: October 19, 2012 at 3:02 am BTW why Johns Hopkins University in the above? Because it is located in Baltimore, MD, as is the HQ of the Authors Guild v. HathiTrust Intervenor Defendant The National Federation of The Blind (NFB) who has never challenged JHU as to their noncompliance with the 1990 ADA or the 1976 Rehabilitation Act. and as long as I am on my own on this one: From the screenplay for Woody Allen's "Annie Hall": This-this guy goes to a psychiatrist and says, "Doc, uh, my brother's crazy. He thinks he's a chicken." And, uh, the doctor says, "Well, why don't you turn him in?" And the guy says, "I would -- but we're poor -- we need the eggs." So now courtesy of this AG v HT Opinion & Order -- since his brother thinks he's a chicken and the average chicken does not have the

cognitive capability to readily discern the printed word -- he now proclaims that his brother has a 'print disability' and needs accessible versions of copyrighted materials as now can be provided under Section 107 fair-use. BTW a digital Adobe PDF version has built-in read aloud as an 'accessibility reading' function so maybe when the chicken is finished the other members of the family and a few friends can take a peak (or peck) at the PDF copy of copyrighted material at their leisure.