I found an article recently entitled, "An obscure copyright law is letting the Internet Archive distribute books published 1923-1941" on BoingBoing.net. Here is an explanation of the issue:
Section 108(h) of the Copyright Act gives libraries the power to scan and serve copies of out-of-print books published between 1923 and 1941; it's never been used before but now the mighty Internet Archive is giving it a serious workout, adding them to their brilliantly named Sonny Bono Memorial Collection (when Bono was a Congressman, he tried to pass a law that would extend copyright to "forever less a day" and was instrumental in moving millions of works from the public domain back into copyright, "orphaning" them so that no one could preserve them and no one knew who the copyrights belonged to).Here is the Internet Archive's description of the collection:
We believe the works in this collection are eligible for free public access under 17 U.S.C. Section 108(h) which allows for non-profit libraries and archives to reproduce, distribute, display and publicly perform a work if it meets the criteria of: a published work in the last twenty years of copyright, and after conducting a reasonable investigation, no commercial exploitation or copy at a reasonable price could be found. This provision was enacted at the same time as the Sonny Bono Copyright Term Extension Act. This collection has been named for Sonny Bono to acknowledge this valuable exemption specifically granted to libraries that was put into the law.
Please be aware that subsequent uses may not be permitted under US copyright such as reproduction, distribution, display or public performance.Section 108 (h) of the Copyright Act reads as follows:
Works may be in the public domain already, in which case, these restrictions do not apply.
(h)(1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.
(2) No reproduction, distribution, display, or performance is authorized under this subsection if—
(A) the work is subject to normal commercial exploitation;
(B) a copy or phonorecord of the work can be obtained at a reasonable price; or
(C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.
(3) The exemption provided in this subsection does not apply to any subsequent uses by users other than such library or archives.
(i) The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news, except that no such limitation shall apply with respect to rights granted by subsections (b), (c), and (h), or with respect to pictorial or graphic works published as illustrations, diagrams, or similar adjuncts to works of which copies are reproduced or distributed in accordance with subsections (d) and (e).If you can read that and understand what it is saying, you can also understand why copyright law in the United States is such a disaster.
I need to note, however, that Internet Archive or Archive.org now has over 14 million books online plus a lot of other stuff. For genealogists, many huge databases are going online on Archive.org and not yet on any other website. It is time to begin regularly using this website for genealogical research.