DId The Good Guys Just Win One?

I have been saying for years that the big problem with digital preservation is economic, in that no-one has enough money to do a good job of preserving the stuff that needs to be preserved. Another way of saying the same thing is that our current approaches to digital preservation are too expensive. One major reason why they're too expensive is that almost everything is copyright. Thus, unless you are a national library, you either have to follow the Internet Archive's model and depend on the "safe harbor" provision of the DMCA, making your collection hostage to bogus take-down notices, or you have to follow the LOCKSS and Portico models and obtain specific permission from the copyright holder, which is expensive.

Reading this excellent post by Nancy Sims, it seems as though Judge Baer, in ruling on motions for summary judgement in the case of Author's Guild v. Hathi Trust may have changed that dilemma. Nancy writes:

Although the judge did say that preservation copying, on its own, may not be transformative, he also said that preservation copying for noncommercial purposes is likely to be fair use.

If this ruling holds up, it will have a huge effect on how we go about preserving stuff and how expensive it is. If preservation copying for noncommercial use is fair use, the need to get for libraries and archives to get specific permission to make copies for preservation goes away. There is a great deal of other good stuff in Nancy's post, go read it.