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The final report of the Section 108 Study Group is available at  Among other recommendations, the report endorses an important new exception that would allow libraries to preserve websites under the following conditions (see p. 104 of report):

A new exception should be added to section 108 to permit libraries and archives to capture and reproduce publicly available online content for preservation purposes, and to make those copies accessible to users for purposes of private study, scholarship, or research.

a. “Publicly available” for purposes of this exception is defined as publicly disseminated online content (such as websites) that is not restricted by access controls or any type of registration, password, or other gateway requiring an affirmative act by the user to access the content.

b. Once a library or archives has captured publicly available online content, it should be allowed to provide access to its preservation copies of this content to researchers on the library’s or archives’ premises.

c. Libraries and archives should be permitted to make the captured content available remotely to their users, but only after a specified period of time has elapsed.

2. Opting Out

a. Rights holders should be able to opt out of allowing libraries and archives to capture their publicly available online content, with the exception of government and political websites. The recommendation
to include an opt-out clause is conditioned on the Library of Congress being able to copy and preserve all publicly available online content, regardless of the rights holder’s desire to opt out.

b. Rights holders who do not opt out of capture and preservation of their publicly available online content should be able to separately opt out of allowing libraries and archives to make their content available remotely to users.

3. Libraries and archives should be prohibited from engaging in any activities
that are likely to materially harm the value or operations of the Internet site hosting the online content that is sought to be captured and made available.

4. Libraries and archives should be required to label prominently all copies of captured online content that are made accessible to users, stating that the content is an archived copy for use only for private study, scholarship, and research and providing the date of capture.

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The Fair Use Project of Stanford Law School’s Center for Internet and Society is co-counsel defending independent book publisher RDR’s right to publish The Harry Potter Lexicon, an unofficial reference guide to the Harry Potter series of books and movies.

The Court has put this case on the proverbial fast track by combining the hearing on the preliminary injunction motion filed by Ms. Rowling and Warner Brothers with the trial on the merits. The trial is scheduled to begin on March 24 at 9:30 am.

The trial will be open to the public, and will be conducted before the Honorable Robert P. Patterson in courtroom 24 of the Daniel Patrick Moynihan United States Courthouse, 500 Pearl St., New York, NY 10007.

Warner Bros., which owns the film rights to the Harry Potter books, and Harry Potter author J.K. Rowling filed a lawsuit on October 31, 2007 against Michigan-based RDR Books to block the publication of the lexicon, claiming that it violates copyright and trademark law and infringes on Rowling’s plans to publish her own companion book. RDR Books contends it has the right to publish the encyclopedic reference book under the fair use doctrine, which safeguards the use of copyrighted material so long as it is used transformatively and does not damage the market value of the original work.

“The public has long enjoyed the right to create reference guides that discuss literary works, comment on them, and make them more accessible,” said Anthony Falzone, executive director of the Fair Use Project, who will serve as counsel on the case. “J.K. Rowling and Warner Bros. are threatening that right. We intend to demonstrate that the fair use doctrine protects the Harry Potter Lexicon.”

Joining Falzone as co-counsel is Stanford’s Lawrence Lessig, founder and director of the Center for Internet and Society and the C. Wendell and Edith M. Carlsmith Professor of Law. They join RDR’s lead counsel David S. Hammer, a former federal prosecutor.

More information about the case is available on the CIS website at:

Lauren Gelman

  • Executive Director
  • Center for Internet and Society
  • Lecturer in Law
  • Stanford Law School