Publishers land killer punch on Internet Archive in book copyright court battle
- Reference: 1679948113
- News link: https://www.theregister.co.uk/2023/03/27/publishers_internet_archive_judgment/
- Source link:
A week ago, Judge John Koeltl from the Southern District of New York [1]heard oral arguments in Hachette v. Internet Archive , a lawsuit filed by four large publishers (Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House) that challenged the Internet Archive's Controlled Digital Lending (CDL) initiative.
The Internet Archive has been making digital copies of physical books that it acquires and lending those copies to online library patrons in a controlled manner – it circulates only as many digital books as it has actual copies. It is offering a digital proxy that stands in for the physical title.
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Copying works protected by US copyright law may be excused if the copying falls under the fair use exemption.
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The non-profit claims its book scanning and distribution qualifies as fair use because its digital lending scheme is "transformative" – which conveys a different meaning than the original – and non-commercial. These are among the factors considered when assessing whether the [5]fair use defense can be applied.
It also asserts that the goals of the " [6]first sale doctrine " – which allows the purchaser of a copyrighted work to "sell, display or otherwise dispose of that particular copy" without seeking permission from the copyright holder – support its controlled lending of digitized purchased books.
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Judge Koeltl, however, found the Internet Archive's arguments wanting. In [8]a decision [PDF] published on Friday, he wrote.
[9]How the Internet Archive faces potential destruction at the hands of Big Four publishers
[10]Oh, 07734! Internet Archive debuts vintage calculator emulator
[11]Internet Archive's 2046 Wayforward Machine says Google will cease to exist
[12]We need a Library of Congress – but for the digital world
"The crux of IA’s first factor argument is that an organization has the right under fair use to make whatever copies of its print books are necessary to facilitate digital lending of that book, so long as only one patron at a time can borrow the book for each copy that has been bought and paid for," Koeltl opined.
"But there is no such right, which risks eviscerating the rights of authors and publishers to profit from the creation and dissemination of derivatives of their protected works. IA’s wholesale copying and unauthorized lending of digital copies of the Publishers’ print books does not transform the use of the books, and IA profits from exploiting the copyrighted material without paying the customary price."
The judge thus granted the [13]publishers' motion [PDF] for summary judgment and rejected the Internet Archive's fair use defense, setting the stage for a possible injunction against the CDL initiative.
It isn't over yet
The New York court's judgment, however, looks like it may have to wait for an appeals court review. In [14]a blog post , the Internet Archive said the initial decision is a blow to libraries and their patrons and promised to appeal.
"This decision impacts libraries across the US who rely on controlled digital lending to connect their patrons with books online," the organization said. "It hurts authors by saying that unfair licensing models are the only way their books can be read online. And it holds back access to information in the digital age, harming all readers, everywhere."
Internet Archive founder Brewster Kahle argues that libraries must be allowed to thrive in the digital age. But public libraries, typically starved of funds, may not be able to fully participate in the digital era if they are obligated to purchase electronic versions of physical books they've already purchased.
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Tyler Ochoa, a professor in the law department at Santa Clara University in California, told The Register that the Internet Archive faces a significant legal fight.
"They have to hope the appeals court sees things differently," he said, "This forecloses the possibility of fair use for what they are attempting to do."
The publishers have identified 127 infringed works that they own and those alone could cost the Internet Archive more than half its [16]2019 budget of $36.7 million . Statutory [17]damages if the court finds that infringement was willful can reach $150,000 per work. So in a worst case scenario, that's more than $19 million – and that's if none of the other 1.3 million titles in the Internet Archive's lending program are considered.
"Certainly, the plaintiffs can claim their lost revenue, whatever they would have charged for a license for each of those uses," said Ochoa. "As the alternative, they can seek statutory damages, a single award of damages per work infringed."
Ochoa expressed skepticism about the Internet Archive's arguments in light of the current state of copyright law.
"Their defense is largely based on an analogy to the first sale doctrine," he explained. "The sale doctrine says that once you've sold a physical object that has intellectual property embodied in it, then the copyright owner's control over that object ceases.
"So when you sell a book to a public library, the public library can lend it to anyone they want, without any further obligations to the copyright owner. And what they tried to do is extend that into the digital environment – to say that 'if we've bought a copy of the book, we should be able to digitize it, and lend our digital copy to anybody who wants it as long as we're not lending our physical copy at the same time.'"
As arguments go it might not hold water, he noted.
"And courts have rejected that defense repeatedly because there's no way for the copyright owner to guarantee that you're not lending the same physical copy at the same time. And the reproduction right is not one of the rights that are exhausted [under the first sale doctrine]. You're not allowed to make a reproduction of a copyrighted work without authorization unless it's a fair use."
Asked whether anyone in Congress has shown interest in changing copyright law to accommodate the Internet Archive's model, Ochoa said he doubts it.
"Congress looked at this issue in the 1990s," he explained. "There were proposals at that time for some sort of digital first sale doctrine. But the stakeholders couldn't agree on that as a defense. And it never got enacted at the time. I don't see any reasonable likelihood that that decision would be revisited." ®
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[1] https://www.theregister.com/2023/03/20/internet_archive_lawsuit_latest/
[2] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/personaltech&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2ZCISALkTvQgh@RGHS1VTJwAAAAI&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0
[3] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/personaltech&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44ZCISALkTvQgh@RGHS1VTJwAAAAI&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[4] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/personaltech&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33ZCISALkTvQgh@RGHS1VTJwAAAAI&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[5] https://www.copyright.gov/fair-use/
[6] https://www.justice.gov/archives/jm/criminal-resource-manual-1854-copyright-infringement-first-sale-doctrine
[7] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/personaltech&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44ZCISALkTvQgh@RGHS1VTJwAAAAI&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[8] https://storage.courtlistener.com/recap/gov.uscourts.nysd.537900/gov.uscourts.nysd.537900.188.0.pdf
[9] https://www.theregister.com/2023/03/20/internet_archive_lawsuit_latest/
[10] https://www.theregister.com/2023/01/30/internet_archives_calculator_emulator/
[11] https://www.theregister.com/2021/10/01/internet_archive_wayforward_machine/
[12] https://www.theregister.com/2022/07/04/digital_museum/
[13] https://storage.courtlistener.com/recap/gov.uscourts.nysd.537900/gov.uscourts.nysd.537900.1.0_1.pdf
[14] https://blog.archive.org/2023/03/25/the-fight-continues/
[15] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_onprem/personaltech&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33ZCISALkTvQgh@RGHS1VTJwAAAAI&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[16] https://projects.propublica.org/nonprofits/organizations/943242767/202013219349323056/full
[17] https://www.copyright.gov/title17/92chap5.html#504
[18] https://whitepapers.theregister.com/
They're not responsible for ensuring you followed the law. The publishers are arguing here that, since it's hard to confirm that you're not breaking the law, therefore you shouldn't be allowed to do something that makes breaking the law possible. I don't think that particular argument is very strong. Sadly, neither was the Internet Archive's attempt to claim that copying a paper book into a digital file is a transformative activity covered under fair use, which normally involves much smaller uses like posting quotes in a review or making a parody. I'm not an expert in copyright law, and both sides are going to need one to have a chance of resolving this in the way they want. I'm hoping the IA can find a way to continue, or at least can escape large penalties, but they will probably need to drop some of their more expansive arguments to do that.
Right, this judgment is a little twisted
Pre-internet era rights have been broadly extended to the internet age, no in all cases, but it's not in "no cases" either. So the summary ruling that there is "no right" is a more than a little arm wavy because the judge explicitly ignored the process of determining if the pre-internet rights and entitlements still applied to digital goods. And the way the judgment is framed will impact how the ruling proceeds through appeals and if the Internet Archive will be granted a stay.
You raise a good point about the bass ackwards logic of faulting the process because the owner can't guarantee a process they aren't legally entitled to control. Their rights end at being able to pursue legal action against anyone they think is violating their copyright, with the burden of evidence on them to show that there was an infraction, not of the defendant to prove their innocence.
And on the point of the Internet Archive or any other group holding rare books that restrict access to the original copies(including university collections and museums), there is ample ability for them to show at trial that the books are locked up a warehouse, and there is not facility for the physical copy to ever be "checked out". Not that that should be the standard, as it is fair and reasonable for a librarian to sideline a copy of a book for digital checkout, or block online access to that copy if the book will be physically lent.
So the plaintiffs here want, as always, the government to act as their free enforcer, so reverse the burden of proof, and to force non-profits and public libraries to pay repeatedly for access to materials they already own.
These are issues the judge in question might not have been competent to decided, but they deserved to be heard at trial, not erased in an unjustified and unfounded summary judgement.
Ah, the digital age
Where buying something means you don't own it.
"Killer punch"? - no, gasoline for self-immolation by copyright 'rentiers'
The hegemony of 'intellectual property' (IP) rentier economics is coming to a close more rapidly than I anticipated.
The Internet Archive has lost in a case brought before a US Federal judge. More likely than not, the judge interpreted the law diligently. Judiciary in higher courts may or may not agree with him. No matter, law , as in statute, is being superseded by law in other guises: take your pick from 'moral', 'realist', 'pragmatic', and 'jungle'.
Law lacking power to enforce is nothing more than recommendation. Just possibly, the Archive shall be obliged to close down. Yet, that would be a terrible outcome for the rentiers. Widely, they would be perceived as having destroyed a noble effort to share knowledge/culture fairly. The Archive is not some tacky outfit trying to gull people into divulging credit card details. It is not the somewhat nobler type of site, offering bounty free of charge whilst regaling visitors with pictures of prostitutes available in their area (old-fashioned telephone booth advertising). The Archive comes across as a genuine 'not for profit' (aka charitable) rather than so many of its ilk which operate under that banner.
Across the globe, exciting things are happening. Russian response to the USA sanctions diplomacy has placed Western IP in the crosshairs.
https://www.rt.com/russia/573573-medvedev-netflix-disney-piracy/
https://www.rt.com/russia/573592-kremlin-spokesman-piracy-suggestion/
The first link refers to former President Dmitry Medvedev's suggestion to allow Russians to download western entertainment content for free. Medvedev is the deputy chairman of the Russian Security Council, and thus continues to carry weight within the Russian Federation.
The second link is confirmation by a Kremlin spokesman that Medvedev's proposal is backed.
What better than to offer the Archive protection within Russia? Further, to legitimise Sci-Hub, Z-library, and so forth?
I am seeking to persuade the Kremlin of the advantages to the economies of Russia, China, and the 'Global South' from eschewing the concept of IP as applied to copyright and patents. Gains will figure in monetary terms, despite short term disadvantage to the nations' current IP supposed 'owners'; more importantly, it will break the dam holding back knowledge (and its application) and culture (and derivation from it) from distribution to all. The knock-on will be beneficial in monetary terms (for those whose minds are affixed to that metric), but importantly it will kick-start another intellectual renaissance: perhaps we can conquer malaria and get to the stars sooner than we thought?
The transition from rentier (monopoly) economics to a proper market-driven set of business models truly compatible with market-capitalism, I have sketched elsewhere.
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Released under the Creative Commons Attribution International Licence 4.0.
"...because there's no way for the copyright owner to guarantee that you're not lending the same physical copy at the same time."
Why is the copyright owner responsible for guaranteeing that you aren't lending both copies? That seems like a stretch.