(which makes up the bulk of many library collections) if we cannot get materials to them in the modern (digital) formats they need?
For negative risk, there are three primary types we worry about: 1) the risk that a library is sued in the first place, 2) the risk that the library loses the lawsuit, and 3) the risk of consequences in the face of defeat in a lawsuit. For each aspect of risk, libraries should make an honest assessment of their risk tolerance, accompanied by advice from legal counsel about how to match some of the ideas presented above and below with that risk profile.
For risk of being sued, it’s not necessarily about the law itself. The issues are actually about time, resources, and reputational harm in defending a lawsuit. A lawsuit can take a tremendous amount of time. For example, the Georgia State e-reserves case (Cambridge University Press v. Patton) has now entered its 10th year of litigation.[1] Lawsuits are rarely resolved in a few months. There can be years of pre-trial action after the complaint is filed. There could be challenges to the pleadings through the motion process, which add additional delay. Answering questions, producing documents, or taking testimony can often take months or years, even before you get to trial. Although the reality is that most lawsuits do not go to trial,[2] the cost of litigation can be high, and these costs often depend on the issues involved and the location of the trial. Attorneys’ fees and costs to go through the process from complaint, right up to trial, can range in the tens of thousands of dollars, and, if it does go to trial, that expense can easily double.[3]
Second, the risk that the library loses in court is primarily addressed by the strength of the legal position under fair use, the framework of which is addressed in Part III. The analysis is also general—case law in particular jurisdictions may be more or less favorable—and it doesn’t fully take into account some of the particular facts and design choices (addressed below) that libraries may choose to implement to further enhance their position. And again, we caution that there are no fair use cases that square precisely with this use scenario, and so libraries entering this space must embrace a certain degree of legal ambiguity. But, the analysis above shows that there is a good faith, reasonable basis for concluding that such uses constitute fair uses.
- ↑ Cambridge Univ. Press v. Patton, 769 F.3d 1232 (11th Cir. 2014).
- ↑ “[P]erhaps up to 97% of cases are resolved by means other than by trial.” Barkai, Kent and Martin, A Profile of Settlement, 42 Court Review: The Journal of the American Judges 34 (2006).
- ↑ See AIPLA, Report of the Economic Survey 36; I–175 (2013) (reporting that litigation with less than $1 million at stake costs on average around $150,000 through the discovery process). While we primarily address risks associated with legal action, CDL may raise many other types of reputational, institutional, and political risks that libraries should carefully consider.
