![\"a](\"https:\/\/cip2.gmu.edu\/wp-content\/uploads\/sites\/31\/2019\/03\/gavel_200x200-150x150.png\")
On Friday the Federal Court for the Southern District of New York (SDNY) ruled in favor of Hachette and other major book publishers, and against Internet Archive (IA) in a lawsuit considering IA\u2019s Controlled Digital Lending (CDL) program, under which IA scanned books and \u201cloaned\u201d digital copies of copyrighted works over the internet. \u00a0The court found that the activities were clearly infringing (PP. 14-15) and also that<\/p>\n
Each enumerated fair use factor favors the Publishers, and although these factors are not exclusive, IA has identified no additional relevant considerations. At bottom, IA\u2019s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book. But no case or legal principle supports that notion. Every authority points the other direction. (P. 45).<\/p><\/blockquote>\n
C-IP2<\/sup>\u2019s Sr. Scholar & Senior Fellow for Copyright Research & Policy Prof. Sandra Aistars drafted and filed a successful amicus brief supporting the publishers in the case. \u00a0She was joined by twelve other scholars. You can read the court\u2019s Order here<\/a> and the Copyright Scholars\u2019 brief here<\/a>.<\/p>\n
Considering the fair use factors in turn, on factor one \u2014 focusing in this instance on transformative use \u2014 the court noted that the HathiTrust and Google Books decisions had foreshadowed the ruling. (P. 19). \u00a0Those cases delineated the outside boundaries of the fair use\/transformative use doctrine by allowing the scanning of entire databases of books in their entirety, but making them available only in limited ways and for limited purposes that added transformative purpose, meaning or message to the works. (PP. 19-20). \u00a0The court explained:<\/p>\n
Importantly, the database did not \u201callow users to view any portion of the books they [were] searching\u201d and therefore, unlike IA\u2019s Website, \u201cd[id] not add into circulation any new, human-readable copies of any books\u201d or \u201cmerely repackage or republish the originals.\u201d [Authors Guild v. HathiTrust<\/em>, 755 F. 3d, 87, 97 (2d Cir. 2014)].<\/p>\n
Google Books similarly found transformative use in Google\u2019s scanning of copyrighted books to create a database that included a \u201csnippet view\u201d search function that allowed readers to view a few lines of text containing searched-for terms. [Authors Guild v. Google, Inc.<\/em>, 804 F.3d, 202, 208 (2d Cir. 2015)]. The snippet view showed the searcher \u201cjust enough context surrounding the searched term\u201d to help the searcher evaluate whether the book fell within the scope of the searcher\u2019s interest \u201cwithout revealing so much as to threaten the author\u2019s copyright interests.\u201d Id<\/em>. at 208, 216. But the Court of Appeals cautioned that \u201c[i]f Plaintiffs\u2019 claim were based on Google\u2019s converting their books into a digitized form and making that digitized version accessible to the public,\u201d precisely what the Publishers allege in this case, the \u201cclaim [for copyright infringement] would be strong.\u201d Id<\/em>. at 225. If HathiTrust and Google Books demarcated the boundaries of fair use, this case shows what conduct remains squarely beyond fair use. (P. 20).<\/p><\/blockquote>\n
The court likewise rejected arguments under the first fair use factor that IA expands the utility of the Works in Suit in any\u00a0way recognized in the Second Circuit: e.g.,\u00a0by using technology to \u201cimprov[e] the efficiency of delivering content\u201d to \u201cone entitled to receive the content\u201d in a way that does not \u201cunreasonably encroach[] on the commercial entitlements of the rights holder.\u201d [Capitol Recs., LLC v. ReDigi<\/em> Inc.<\/em>, 910 F.3d 649, 661] (citing Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984)); see also [Fox News Network, LLC v. TVEyes, Inc., <\/em>883 F.3d 169, 177 (2d Cir. 2018)].\u201d (P. 22). The court noted that to accept IA\u2019s expanded utility argument would be to \u201cignore the teachings of the Court of Appeals for the Second Circuit in Google Books<\/em> that there would be a \u2018strong\u2019 claim for copyright infringement if Google had distributed digitized copies of complete books.\u201d (P. 24).<\/p>\n
The court also found unpersuasive IA\u2019s suggestion that it is a non-commercial user. (P. 26).\u00a0 It explained that the facts (including how \u201cevery single page of the Archive is monetized\u201d (P. 27)) demonstrate how \u201cIA stands to profit from its non-transformative exploitation of\u00a0the Works in Suit. \u00a0The commercial-noncommercial distinction, like\u00a0the transformativeness inquiry, therefore counsels against a\u00a0finding of fair use.\u201c (P. 28).<\/p>\n
The SDNY was utterly unconvinced by IA\u2019s attempts to bootstrap its faulty first sale arguments into its equally faulty fair use arguments, hopeful that two wrongs might together make an exception. (PP. 29-31). The court saw through this charade and rightly pointed out that [i]n ReDigi, the Court of Appeals plainly held that the first sale doctrine has now been codified in\u00a0Section 109(a), that it does not include a right of reproduction,\u00a0and that any broader scope of the first sale doctrine should be\u00a0sought from Congress, not the courts. Id.\u201d (P. 31). \u00a0It is also worth noting that it did not escape the SDNY\u2019s notice that the IA and its collaborators do not even follow the CDL lending rules they outline for themselves.\u00a0(PP. 31-32).<\/p>\n
The court found that since the works at issue were original works of authorship (including fiction and non-fiction works that were \u201cfar removed from the . . . factual or descriptive work more amenable to fair use\u201d (Pg. 35)), the second factor favored the Publishers. (PP. 34-36).\u00a0The third factor likewise favored the publishers because IA copied the works in their entirety without a transformative purpose and for a purpose that directly competed with licensed eBooks.\u00a0(P. 37).<\/p>\n
Regarding the fourth factor – marketplace harm – evidence that IA pitches its offerings to libraries to supplant licenses from publishers could not be denied. (P. 39). \u00a0IA offered weak arguments the court did not find persuasive that Publisher profits had increased during the time of the COVID lockdown while IA was pursuing its Emergency Digital Library initiative, but the metrics suggested by IA were at best weakly correlative in nature in the court\u2019s opinion. (P. 43).<\/p>\n
Finally, the court considered whether any other public benefits could flow from IA\u2019s services. (PP. 44-45).\u00a0It rejected the suggestion that any alleged public benefit created by easier access to works outweighed market harm to publishers. (P. 44). \u00a0While \u201cany copyright infringer may claim to benefit the public by increasing public access to the copyrighted work,\u201d the Works in Suit are already accessible by readers through libraries in a free library lending model supported by widespread legitimate commercial licensing models deploying a variety of lending\/licensing options.\u00a0(PP. 44-45).<\/p>\n
While the court\u2019s decision is a resounding indictment of IA\u2019s business model and CDL programs, it should not be read in any way to tarnish the profile or work of libraries. \u00a0Libraries performed especially important work during the COVID-19 pandemic, and remain bastions of democracy by promoting free thought and learning. \u00a0It is important that libraries continue to disseminate works to communities that may otherwise lack easy access to them by using a variety of licensed tools and authorized exceptions under the Copyright Act. Should additional exceptions be needed they should be sought (as the court noted on page 31) from Congress, not the courts.<\/p>\n
Thanks for C-IP2<\/sup> Research Assistant Cala Coffman, a 2L at Scalia Law, for her editing assistance.<\/span><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"
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