During the decades preceding the 1976 Copyright Act, attempts to carve out a legislative exception for library copying proved futile.'° In 1935, Congress considered various proposals to incorporate a library provi-sion into the ratifying legislation, but they did not take any action on them.'0' A similar fate met bills introduced in 1940 and 1944.102 By the 1960s, copying technologies had seen significant advancement, increasing the methods and ease by which libraries could serve the public, and the methods and ease by which copyrights could be infringed.103 By this time, publishers and libraries were finding the Gentlemen's Agreement of 1935, the first agreement between publisher and library groups that set limits on copying activities, unworkable.04 In subsequent years, technological ad-vances increased dramatically the amount of photocopying by libraries and their patrons.05 And as the copying technology increased, so did the fervor of the debate over photocopying.'0 6
Consequently, in 1955, Congress asked the Copyright Office to pre-pare a series of studies and reports on the current state of copyright law.0 7 These reports, stressing scholarship and research, served as the basis for the eventual overhaul of the Copyright Act.10 8 In June of 1961, the Register of
99. Id.
100. Rasenberger, supra note 45, at 8.
101. Id.
102. Id. at 9-10.
103. Id. at 10.
104. Id.
105. Rasenberger, supra note 45, at 10.
106. Id.
107. Id. at 11, n.51.
108. Id. atn.ll.
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Copyrights published a massive report on copyright reform, which included a proposal for a legislative solution to library copying.0 9 The Register said that a legislative revision was necessary because the growing uncertainty over the limits on fair use was negatively affecting researchers and under-mining intellectual progress." ° The Register stressed, in addition, that
"photocopying should not be permitted where it would compete with the publisher's market.""' Thus, the Register recommended a blanket licens-ing system for businesses maklicens-ing copies, and limited copylicens-ing privileges for libraries, stressing again the virtues of research and scholarship," 2 and en-suring that authors were properly compensated for the use of their works.
Library representatives dissented, arguing that the codification of copying rules presented a "great danger" because it would "freeze what was allowable" at the very moment that technology was seeing significant advancement.1 3 The Copyright Office ultimately agreed, stating that, "at the present time the practices, techniques, and devices for reproducing vis-ual images and sound and for 'storing' and 'retrieving' information are in such a state of rapid evolution that any specific statutory provision would be likely to prove inadequate, if not unfair or dangerous, in the not too dis-tant future."' '14 Such cautiousness was typical among legislators throughout much of copyright history. What lessons does this brief glimpse into the history of section 108 provide for the current dispute?
Currently, section 108 does not define "libraries."'"5 However, legis-lative materials accompanying the Copyright Act of 1976 are instructive on this point. The 1976 House Report, for example, states that "a purely com-mercial enterprise could not establish a collection of copyrighted works, call itself a library or archive, and engage in for-profit reproduction and distribution of photocopies."'16 Not surprisingly, this definition disquali-fies "purely commercial enterprises" from taking advantage of the section 108 exception. One might surmise that the authors of this limitation were not sufficiently circumspective of the implications that developing tech-nologies would have for the "library" concept, and therefore settled on a definition they thought would suffice given the realities of the day and
109. Id. at 12 (citing REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW (1961)).
110. Rasenberger, supra note 45, at 12.
111. Id.
112. Id. at 13.
113. Id. at 14 (citing the statement of William H. Hogeland, Jr., Joint Libraries Comm. on Fair Use in Photocopying, Sept. 14, 1961).
114. Id. at 13 (citing the statement of Joseph A. McDonald; Smith, Hennessey & McDonald, Sept. 14, 1961).
115. Id. atn.144
116. Id.; H.R. REP No. 94-1476, at 74(1976).
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HASTINGS COMM/ENT L.J.
foreseeable future possibilities. And how could they be adequately circum-spective being decades removed from the advent of the Internet, a com-pletely unexpected revolution in itself. It seems, though, that this definition places too much emphasis on the act of copying itself and the circum-stances under which it takes place, and too little emphasis on whether the commercial enterprise furthers the objectives of the library while respecting the financial interests of publishers and authors.
As stated earlier, a certain amount of commercialism may need to be tolerated if it substantially furthers the original objective of "libraries,"
namely, scholarship and information dissemination. This requires an ex-pansion of the concept to include commercial enterprises such as Google whose aim and effect is the radical democratization of access to informa-tion. Such re-conceptualizations have become increasingly necessary in an Internet age that has forced us to re-examine or discard completely our tra-ditional notions of business and education.
So does the 1976 House Report definition "freeze potentially detri-mental measures into our laws for years to come and to remove any impe-tus for thorough consideration of this issue"?'17 It would seem so, and re-cent case law interpreting section 108, though scant,'18 appears to remain true to the meaning of the 1976 declaration. In Pacific & Southern Co. v.
Duncan,"19 the Eleventh Circuit noted, albeit in a footnote, that a commer-cial organization that videotapes television news programs and sells the tapes is not an "archive" within the meaning of section 108.120 In 1991, the court in United States v. Moran indicated that a commercial video rental store does not operate as a library or archives, and thus cannot make unau-thorized replacement copies of copyrighted works under section 108.121
Several important facts about these cases should be noted. Unlike the Print Library, neither the commercial video store in Moran nor the com-mercial newspaper clipping service in Pacific & Southern Co. had as their ostensible or stated purpose the worldwide diffusion of information. Nor can it fairly be said that "democratization" of access to valuable stores of information was the ultimate effect of those commercial enterprises' copy-ing activities. And indeed, neither case involved the Internet, which pre-sumably would have affected how those defendants were viewed by the courts. It is thus consistent with the history of section 108 to say that those
117. Rasenberger, supra note 45, at 14 (citing the statement of William H. Hogeland, Jr., Joint Libraries Comm. on Fair Use in Photocopying, Sept. 14, 1961).
118. Id. at 24 (saying that published judicial interpretations of section 108 are "scant.") 119. 744 F.2d 1490, 1490 (llth Cir. 1984)
120. Id. at 1494 n.6 (11 th Cir. 1984); see also Rasenberger, supra note 45, at 24, n. 144.
121. United States v. Moran, 757 F. Supp. 1046, 1051 (D. Neb. 1991); see also Rasenberger, supra note 45, at 24, n. 144.
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businesses should not be able to take advantage of the library exception be-cause their objectives seem entirely commercial and they harm the markets of rights-holders. It is not, however, consistent with that history to say that the digitized Print Library, whose aim and effect is to educate the masses, should not be able to benefit from the same copying protections provided to traditional brick-and-mortar libraries under section 108. In this way, the 1976 definition may prove quite "dangerous" for Google digitization pro-ject, and more importantly, for virtual libraries and the value they provide
to citizens.
Further, the Senate Report to the Digital Millennium Copyright Act, enacted less than a decade ago in 1998, reiterates the 1976 limitation, re-minding us that, "just as when section 108 of the Copyright Act was first enacted, the term 'libraries' and 'archives' as used and described in this provision still refer to such institutions only in the conventional sense of entities that are established as, conduct their operations though, physical premises in which collections of information may be used by researchers and other members of the public.122 As the usage of the word "conven-tional" suggests, the authors of this statement sought to remain true to the 1976 limitation and the traditional understanding of the library: the physi-cally accessible, non-commercial premises where people converged to edu-cate themselves. It seems like this definition, then, is a remnant of the past.
The Print Library has forced us to shed our traditional understanding of how we disseminate knowledge in the name of scholarship and research.
The educational world is "virtual" now, and copyright law should reflect this. Thus, to the extent that the 1976 definition of "library" has been so-lidified into the law and reinforced by subsequent cases and legislative statements, perhaps it is time to expand it.
In the fair use context, mere commerciality does not disqualify a use from protection under the copyright law. In Kelly v. Ariba Soft, a fair use case, the court found that the defendant search engine's commercial copy-ing activities did not militate against a findcopy-ing of fair use, because those ac-tivities did not "supplant[] the need for the originals," and most impor-tantly, they "benefited the public by enhancing information gathering techniques of the internet." This reflects the "balancing of the equities"
type of approach that courts have consistently used in the fair use context.
Courts have repeatedly said that "[f]air use is an 'equitable rule of reason,' which is to be applied in light of the statute."'123 This means that we must balance the rights of copyright owners against the public good, with an eye
122. Rasenberger, supra note 45, at 24, n. 144; S. REP. NO. 105-190, at 62 (1998).
123. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 448, (1984) (quoting H.R.
REp. No. 94-1476, pp.6 5-6 6).
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toward the original objectives of the copyright law, which are to
"[p]romote for Progress of Science and the useful Arts, by securing for lim-ited Times to Authors... the exclusive Right to their respective Writ-ings .. ,,124 It is difficult to think of a reason why this balance approach should not be used in the library exception context, although it is necessary to act cautiously in this area. Here, the Print Library substantially furthers the goals of the Copyright Act, and it does not appear to negatively affect the delivery of information to users. Further, it respects the financial rights of rights-holders, and does not seem at this point to pose a threat to their markets.125 But as the law currently stands, Google cannot take advantage of the library exception, even though it furthers all of the objectives that the exception was intended to protect. Thus, the terms "libraries" and "ar-chives" may need to be broadened to include commercial enterprises with public missions such as Google's Print Library. The benefits of doing so
are substantial, as are the costs of not allowing such projects to fall under the scope of the exception.
Another option would be to apply balance a test, the first part of which asks whether the virtual library is commercial in nature. If it is, then the ex-ception will not apply unless the virtual library proves that 1) it has a public purpose, and 2) it does not adversely affect the financial interests of rights-holders, nor bias the scholarship process. A simple test, sure, but it may be necessary to insure that commercial yet useful collections such as the Print Library are not needlessly eliminated.