Volume 72

TABLE OF CONTENTS

From the Desk of the Editor-in-Chief
PART I: PRESERVATION
Heritage Collections and Preservation Panel
With Rina Pantalony, Brian O’Leary, David Sutton,
Trevor Reed, and Margaret Bodde 559

Revisiting The National Film Preservation Act of 1988: An Introduction and Reprinting of Eric J. Schwartz’s
1989 Journal of the Copyright Society Article
By Eric J. Schwartz 587

PART II: ARTICLES
Will Google v. Oracle Save the World’s Cultural Heritage?
By Brandon Butler 593

No One “Owns” That: Metadata, Copyright, and Problems with [Library] Vendor Agreements
By Kyle Courtney, Kathleen DeLaurenti, Matthew Kopel,
and Katie Zimmerman 621

Protecting Library Exceptions Against Contract Override
By Jonathan Band 659

Contractual Override: How Private Contracts Undermine  the Goals of Copyright Act for Libraries and Researchers,
And What We Can Do About It
By Dave Hansen, Yuanxiao Xu, and Rachael G. Samberg 675

Protecting Progress: Copyright’s Common Law and Libraries
By Margaret Chon 761

Understanding the Internet Archive Litigation Cases
By Sara Benson 819

“Beam Me A Book, Scotty:” Virtual Access Rooms Under Section 108 of the Copyright Act
By Kyle Courtney 831

PART III: LECTURE
Libraries, Education, and Fair Use: A Lecture
By Kenneth D. Crews with Elizabeth Townsend Gard 861

PART IV: ANNUAL CASE SUMMARIES
Recent Developments in Copyright Law: Selected Annotated Cases
By Thomas Kjellberg, Joelle Milov, Dasha Chestukhin,
Jaime Berman, Allison Furnari, Paige Geier, Justin Karasick,
Sarah Sue Landau, John Miranda, Raphael Nemes,
Reema Pangarkar, Emily Stein and Lyndsey Waddington – 897

FROM THE DESK OF THE EDITOR-IN-CHIEF AND CO-EDITOR

Elizabeth: I am pleased to introduce Rina Pantalony, our guest co-editor for our library special edition. Rina is the Senior Advisor, Library Policy & Intellectual Property, UCLA Library, where she is an expert in collections management and access issues. And Rina has been a leader in the library and archive community in so many ways, including working on library, archive and museum issues for WIPO. She is co-founder and chairs the Board of Directors of the Open Copyright Education Advisory Network (OCEAN), a non-profit organization dedicated to copyright education for professionals working in cultural heritage organizations. Previously she was the Director of the Copyright Advisory Services, Columbia University Libraries. She is also a member of the Copyright Society. So, I was thrilled when she agreed to be our co-editor for our special library issue. Take away, Rina!

Rina: I enthusiastically agreed to take on the challenge of co-editing an edition of the Journal dedicated to “library” issues, although it is worth noting that the intellectual property issues presented here impact other heritage institutions, such as archives and museums, too. In an age of rapid technology development, thought must be given to mission-driven cultural institutions whose role it is to manage heritage for the benefit of the public. In fact, these organizations hold a duty of care to do so.

As provided for in the Toolkit on Preservation, published by the World Intellectual Property Organization and referenced in this edition, libraries, archives and museums are considered “trusted institutions” because of their public interest mandate. This is a form of “social contract” where they acquire and steward collections, ethically and legally, specifically for the benefit of the public. Thus, as a result of their public interest mandate, libraries, archives and museums are obligated to both preserve and provide access to collections.

Managing collections is part of this stewardship role and references not just the maintenance and preservation of physical assets but it also means managing intangible assets, as well. It is often the case that donors who donate collections do not hold all of the rights to the materials and objects that form part of their donation, meaning that heritage institutions are obligated to engage in a form of rights forensics, trying to ascertain the status of rights and identification of rights holders at the time of or after acquisition. At the same time, given finite resources, heritage institutions are obligated to make decisions about collections, preservation and priorities. Since access to collections forms part of their stewardship mandate, preservation decisions are made within the scope of being able to make preserved collections available to the public, for various uses.

Finally, their public interest mandate requires libraries, archives and museums to provide access in ways that meet the use needs of the public. And herein lies the tension. Because heritage institutions are obligated to care for intangible assets, ethically and legally, for the benefit of the public, they find themselves at the forefront of copyright law. It is within this scope that we present a series of articles, examining both the opportunities and challenges facing libraries, archives and museums as they carry out their duty of care to preserve and provide access to collections for the benefit of the public.

Part I, Preservation, starts the issue off with the transcripts from a two-hour conversation recorded on June 23, 2025, “Libraries And Preservation Conversation,” with Rina Pantalony, Brian O’leary, David Sutton Trevor Reed, and Margaret Bodde. This is a conversation about the role of cultural preservation, in light of the recent publication by WIPO in September 2024, the “The Toolkit on Preservation.” Then, we thought we might revisit the United States 1988 legislation on preservation, the National Film Preservation Act by reprinting Eric J. Schwartz’s article about the legislative process that was published in the Journal in 1989. We asked him to write a short introduction.

Part II then moves to Articles. We start with Brandon Butler’s “Will Google v. Oracle Save the World’s Cultural Heritage,” looking at how the U.S. Supreme Court opinion might find a path helpful for digital works that are software dependent, and their longe term preservation. Butler argues that “Coupled with the insights from Apple v. Corellium, the Code of Best Practices in Fair Use for Software Preservation, and successful DMCA rulemaking exemptions, this ruling empowers libraries and archives to leverage fair use to ensure the enduring accessibility of software-dependent digital heritage, thereby realigning copyright with its fundamental purpose of promoting progress.”

We then have three articles that are addressing contracts. This seems to be the key issue libraries are concerned with at the moment. The second article, “No One ‘Owns’ That: Metadata, Copyright, and the Problems with [Library Vendor Agreements,” by Kyle K. Courtney, Kathleen DeLaurenti, Matthew Kopel, and Katie Zimmerman is a study of five institutions peer institutional metadata policies, vendor agreements, and the U.S. law to better understand the legal status of bibliographic metadata. The third article, “Protecting Library Exceptions Against Copyright Override,” by Jonathan Band, continues the conversation of contracts, looking at what a copyright exception prevention clause related to libraries would look like, as 30 countries have already adopted such a clause. “One country notably is missing from this list: the United States.” The fourth article continues with this theme with “Contract Override: How Private Contracts Undermine the Goals of the Copyright Act for Libraries and Researchers, and What We Can Do About It,” authored by Dave Hansen, Yuanxiao Xu, and Rachael G. Samberg, arguing that current licenses upset the balance meant to support innovation, teaching, research and preservation. The paper describes the harm to academic researchers and libraries, and suggests ways to limit that harm. We then turn to the fourth article, “Protecting Progress: Copyright’s Common Law and Libraries,” by Margaret Chon, who describes the libraries as unique stakeholders, and looks in particular at ebook licenses, and suggests that perhaps exhaustion or copyright misuse might bring a balance to current publishing industry practices.

Sara Benson graciously wrote a short piece on “Understanding the Internet Archive Litigation Cases,” which is our fifth article. And Kyle Courtney rounds out our articles with “‘Beam Me a Book, Scotty:’ Virtual Access Rooms under Section 108 of the Copyright Act,” suggesting that the in-person digital access mandate requirement is at odds with the purpose of copyright, and suggests a way to make Virtual Access Rooms (VARs) available remotely without violating Section 108.

Part III is a lecture by Kenneth Crews, a foremost scholar on libraries and archives. He sat down with Elizabeth to recreate his lecture from the Kraemer Copyright Institute, on “Libraries, Education, and Fair Use.” Part IV ends the issue with the very much loved annual summaries of cases by Cowan, Liebowitz & Latman, with Thomas Kjellberg heading the endeavor with a full team. These summaries cover June 2024 to May 2025, and the highlights were presented at the 2025 annual meeting in June 2025 at the Hyatt Regency Chesapeake Bay Golf Resort, Spa and Marina.

Elizabeth: So, this is a very full issue. Thank you to the Copyright Society Fellows, who assisted with the production of this issue, and in particular Holly Haney and Kristin Ivey, our co-managing editors, and Jon Sorokin, our Production Editor. Thank you as always to Kaitland Kubat, our Executive Director or the Copyright Society, and to our current President, Daniel Cooper and Vice-President, Theodore Chenug. This volume started when I received both Kyle’s paper and Maggie’s as submissions within the space of two hours. Rina came on board quickly after that. It’s been a blast working with everyone on this special Library Issue.

Elizabeth Townsend Gard
Editor-in-Chief
Journal of the Copyright Society
John E. Koerner Endowed Professor of Law
Tulane University Law School
eic@copyrightsociety.org

Rina Pantalony
Senior Advisor, Library Policy, IP, and Scholarly Communication
University of California, Los Angeles
pantalony1@library.ucla.edu