A Copyright Lawyer Explains the Internet Archive Ruling

We talk fair use, digital libraries, and future implications.

Last Friday, US District Court Judge John G. Koeltl of the Southern District of New York sided with publishers in Hachette v. Internet Archive over the Internet Archive’s controlled lending program through Open Library. The plaintiffs—Hachette, HarperCollins, Wiley, and Penguin Random House—contended that the Internet Archive freely distributed unlicensed, copyrighted materials and incurred potential market losses. The Internet Archive defended its dissemination of copyrighted materials under the principles of fair use, and many librarians called for the Internet Archive to be recognized as a library in its own right. Judge Koeltl ultimately rejected the Internet Archive’s interpretation of fair use and ruled in favor of the publishing industry. Internet Archive has indicated that it will appeal the decision.

To help make sense of this ruling and its implications for librarians, we interviewed Jonathan Band, a copyright lawyer in Washington, D.C. He has provided counsel to the Library Copyright Alliance, consisting of the American Library Association and Association of Research Libraries. The views expressed in this interview are Jonathan’s own and not those of any client.

In a nutshell, what was the judge’s reasoning for siding with the publishing houses in this lawsuit?

The judge found that the Internet Archive’s circulation of the 127 works-in-suit was not fair use because those 127 titles were also available under license through aggregators such as OverDrive. In other words, the judge found the Internet Archive’s Open Library competed directly with the commercial eBook licensing market for libraries. Because of this direct competition, the Internet Archive’s use was, according to the judge, not “transformative” within the meaning of the first fair use factor, and harmed the market for the work, contrary to the fourth fair use factor.

What is transformative use? How did the Internet Archive perceive itself meeting this criterion? Why didn’t the judge think the Internet Archive met it?

In their analysis of the first fair use factor—the purpose and character of the use—the courts often look at whether the use was “transformative.” That is, did the use serve a different purpose or function from the original, or does it merely compete with the original? There is some case law that suggests that if the alleged infringer is providing the work in a more efficient way, the use might be transformative. Here, the judge stressed that the publishers were providing the same works in precisely the same way to the same universe of readers; they were licensing the works to libraries as eBooks via aggregators. 

How does Internet Archive’s scanning and lending program differ from services such as Google Books and HathiTrust? Will this ruling also affect them?

Google Books and HathiTrust are not similar services. Google Books displays only short snippets of works for purposes of identifying relevant books in response to a search query. It does not make available the full text of in-copyright works to anyone. HathiTrust also acts as a search engine for books and displays full text only to people with print disabilities. The judge in this case distinguished the Internet Archive’s Open Library from the Google Books and HathiTrust services. Higher courts have already found Google Books and HathiTrust to be fair uses, and this decision has no effect on rulings.

Does this ruling have implications for libraries that provide digitized copies of materials to scholars and patrons, such as through interlibrary loan?

Libraries can continue to provide digitized copies of materials to scholars and other patrons in a manner consistent with the document supply provisions of 17 U.S.C. 108(d) and (e). Libraries also will be able to continue their existing programs for providing access to digitized copies of orphan works and other out-of-commerce titles. The ruling only concerns the lending of titles that are available through commercial eBook licensing platforms such as OverDrive. 

Much of the chatter about this lawsuit focused on the Internet Archive’s role as a library. As some academic librarians opined in Inside Higher Ed, “The argument that the Internet Archive isn’t a library is wrong. If this argument is accepted, the results would jeopardize the future development of digital libraries nationwide.” Hachette, in their suit, referred to the Internet Archive’s library designation as self-branding. Does the ruling make a judgment on whether the Internet Archive, indeed, qualifies as a library?

The judge sidestepped the question of whether the Internet Archive was a library. Instead, in his analysis of the first fair use factor—the purpose and character of the use—the judge found that the Internet Archive’s use was commercial (as opposed to noncommercial). Frankly, the reasoning of this part of the opinion was weak. But the judge noted that this finding was not decisive to his conclusion that the Internet Archive’s use was non-transformative. The key to that holding was his understanding that the Internet Archive competed directly with the commercial eBook licensing market, as noted above.   

What are the implications of this ruling for how fair use will be interpreted in the future?

This ruling applies to a narrow set of facts, and at this point, it is only the ruling of a trial court. The decision of the Second Circuit on appeal will have significantly more precedential weight, but it too likely will address only the narrow issue of library copying and lending in direct competition with the titles available through commercial eBook licensing channels.

Are there other copyright suits that tech librarians should have their eyes on?

By the end of June, if not sooner, the Supreme Court will decide the Andy Warhol Foundation v. Goldsmith case. That could affect what libraries can do with much of the twentieth-century art in their collections. Further, the Supreme Court is considering whether to hear the appeal in ML Genius v. Google. That case considers whether licenses that prohibit copying are preempted by the Copyright Act. That could have far-reaching implications for library activities that are permitted by the Copyright Act but prohibited by license terms. 

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