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Comment by btilly | Hacker News Reader

No, you are misunderstanding it.

108 gives additional rights to libraries to make copies. But it does not take away the right of the library to offer copying for any existing purpose. Therefore, contrary to the posted notice, it is perfectly legal for the library to offer copying services for purposes OTHER than the extra permissions granted in 108.

Which means that libraries are authorized under the law to produce copies for all the same purposes that Kinko's is allowed to produce copies. It is up to the library whether to do so. And it is incorrect for the sign to say that the library may NOT do so.

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I’m confused how one parses the required statement to mean fair use is prohibited.

It states “a photocopy or reproduction for purposes in excess of ‘fair use’” (emphasis mine) generates liability, and that the library “reserves the right to refuse to accept a copying order,” not that it must.

The entire article is premised on a red herring.

The notice says:

Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be “used for any purpose other than private study, scholarship, or research.”

This says that libraries and archives are ONLY authorized to furnish a photocopy IF the specified condition is met. In other words, they are not authorized to allow you to make a copy for any other purpose. Even if that other purpose is covered by fair use.

But that isn't what the law says. The law says that, even if not otherwise authorized, the library or archive is ALLOWED to furnish a photocopy for those purposes. It is an additional permission, NOT a restriction.

Elsewhere it correctly indicates when you, the user, will be sued. And it indicates when the library may legally refuse to make a way you a copy. But it is still worded in such a way to mislead the librarian into thinking that the library will violate the law if they let you make copies for the various purposes for which people legally make copies at Kinko's. And that is false.

> it is still worded in such a way to mislead the librarian

Do we have anecdotes of this happening? Librarians tend to be well versed in their rights, at least in states which see libraries as more than book bazaars.

> In other words, they are not authorized to allow you to make a copy for any other purpose. Even if that other purpose is covered by fair use.

This is not how I parse this. Notably, the library is an intermediary and the purposes enabling fair-use for the end user do not apply to them. They require their own framework, which is provided under Section 108. However, while this regulates the activities of the library as an intermediary, this does not apply to the end user. For the latter, the note still refers to the general conditions of fair-use.

(I also do not see how these purposes may be hindered by this: in order to express your criticism, you go to the library to research the original material. The title for the library to provide you a copy is your research. Now, you can still use this material under the general conditions of fair-use. On the other hand, the library is not supposed to provide you a copy for the purpose of commercial distribution.)

On the other hand, the library is not supposed to provide you a copy for the purpose of commercial distribution.

Where in the statute does it say this?

Suppose that I write a pamphlet. I am the copyright owner. What in the law says that I can't go to the library, pay for the use of their photocopier, and make copies there that I will try to sell?

The library may indeed refuse me if they think that copyright law is being broken. But if I can convince them that it isn't, then there is nothing illegal in their permitting that copying. Even if I was lying, they did their due diligence and are legally still fine.

> Where in the statute does it say this?

Generally speaking, in Section 108:

> (…) under the conditions specified by this section, if—

> (1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage;

https://www.law.cornell.edu/uscode/text/17/108

If, however, you were the copyright owner and were to (ab)use a library as a copy shop, the entire section does not apply, since it's about a special (but limited) exemption from copyright regulations for library copies. (The section starts with, "Except as otherwise provided in this title and notwithstanding the provisions of section 106, it is not an infringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce…") Mind that this is not about the use of library hardware, its's about a legal framework for libraries to provide copies of copyrighted material to library users.

(Still, you may encounter other difficulties, like the library deciding that they are not a copy shop, or that they won't exceed the legal limit of 3 copies as provided under Section 108 anyways, which wouldn't work out that great for producing a pamphlet… Maybe, there's a statute for this, but this is another topic.)

As I understand it: The library furnishes (produces, provides) a copy on request, which is technically a publication to 3rd parties, since the library is not the user. But this is covered under Section 108, which provides a legal framework for this for the purpose of "private study, scholarship, or research". On the other hand, users have (still) full access and usage rights under conditions of fair-use. (E.g., as a user, you are still allowed to use the material for criticism. Notably, this is your criticism, but not the librarian's criticism, who produces the copy that is furnished to you. The enabling title for them is your research.) – So the note states the conditions under which the copy was produced and warns users of liabilities, in case of excess of fair-use on their side. In other words, this is a legal copy, but it doesn't start a branch of free publication. (As opposed to, "Everybody can go to the library and get a copy, so I can hand out copies of this just as well.")

(Disclaimer: not a US citizen, not a lawyer.)

I don’t think this is what the author is complaining about. It seems like he’s bothered by the example of fair use provided in the notice: “One of these specified conditions is that the photocopy or reproduction is not to be ‘used for any purpose other than private study, scholarship, or research.’” What he’s complaining about is that fair use law allows copies for “criticism, comment, news reporting, teaching”, but the notice doesn’t mention those.

The article really does seem like breathless muck-raking. Yeah there are subtleties, and yes the notice isn’t totally clear (perhaps because that would make it really long and harder to understand by non-lawyers), but the author insists on interpreting the language “study, scholarship, or research” to be exhaustive and complete, where I read it from the beginning to be simply an example of fair use. The notice actually is pretty clear it’s just saying the copies must adhere to fair use, which kinda clears up the whole problem the author is trying to inflate. The notice says explicitly “in excess of ‘fair use’”, so why is the author jumping to some conclusion that the notice meant something other than fair use?

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