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24 Berkeley Tech. L.J. 437 (2009)
Proceed with Caution: How Digital Archives Have Been Left in the Dark

handle is hein.journals/berktech24 and id is 441 raw text is: PROCEED WITH CAUTION: How DIGITAL ARCHIVES HAVE BEEN LEFT IN THE DARK By Ayvssa N. Knutson Digital preservation practice exists in a legal gray area. Following the proposed settlement of Google's Library Project litigation-a pair of class action copyright infringement lawsuits brought against Google in 2005 by the Authors Guild, the Association of American Publishers, and several publishing houses '-the legality of digital archives and libraries remains unclear. Furthermore, cases such as the short-lived Internet Archive v. Shell2 provide little guidance but highlight many of the dangers digital archives may encounter. This Note lays out the principal liabilities to which digital archives are exposed, including their potential but imperfect defenses, using the recent- ly settled but non-precedential Internet Archive v. Shell case as an example of the uncertainty surrounding digital archiving. Digital archives face many legal barriers, including practically perpetual copyright terms in the material they include, an uncertain fair use doctrine, a chaotic licensing scheme, and a proliferation of online contracting that threaten archivists' efforts to construct comprehensive digital libraries. While scholarly litera- ture has already explored the application of the fair use defense to archives such as Google's Library Project3 and to some extent the Internet Arc- hive,4 this Note further explores the fair use defense in light of the Google © 2009 Alyssa N. Knutson. The author hereby permits the reproduction of this Note subject to the Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License, the full terms of which can be accessed at http://creativecommons.org/ licenses/by-nc-nd/3.0/legalcode, and provided that the following notice be preserved: Originally published in the Berkeley Technology Law Journal 24:1 (2009). 1. See generally Lawrence Jordan, The Google Book Search Project Litigation- Massive Copyright Infringement or Fair Use?, 86-SEP. MICH. B.J. 32 (2007) (pro- viding a quick overview of Google Book Project and the New York litigation). 2. 505 F. Supp. 2d 755 (D. Colo. 2007). 3. See, e.g., ROBIN JEWELER, CONG. RESEARCH SERV., THE GOOGLE BOOK SEARCH PROJECT: IS ONLINE INDEXING A FAIR USE UNDER COPYRIGHT LAW? (2005), available at http://www.opencrs.cornrpts/RS22356_20051228.pdf; Jonathan Band, Google and Fair Use, 3 J. Bus. & TECH. L. 1 (2008); Douglas L. Rogers, Increasing Access to Knowledge Through Fair Use-Analyzing the Google Litigation to Unleash Developing Countries, 10 TUL. J. TECH. & INTELL. PROP. 1 (2007); Elizabeth Hanratty, Google Library: Beyond Fair Use?, 2005 DuKE L. & TECH. REv. 10. 4. See, e.g., Kinari Patel, Authors v. Internet Archives: The Copyright Infringe- ment Battle Over Web Pages, 89 J. PAT. & TRADEMARK OFF. SOC'Y 410 (2007); Rebecca Bolin, Locking Down the Library: How Copyright, Contract and Cybertrespass Block

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