Online service says it will appeal

In a case that tests the outer limits of digitization of copyrighted works, a federal judge in New York has ruled that Internet Archive infringed the copyright of four publishing houses when it scanned print copies of books and made them widely available in digital format without permission and without paying licensing fees.

The decision by U.S. District Judge John G. Koeltl in Hachette Book Group et al. v. Internet Archive et al. granted summary judgment — judgment as a matter of law based on uncontested facts — to the publishers, concluding that the fair use doctrine of American copyright law does not extend to the copying here: “(F)air use does not allow… the mass reproduction and distribution of complete copyrighted works in a way that does not transform those works and that creates directly competing substitutes for those originals.”¹

The case focused on the decision by Internet Archive (IA) to acquire print copies of millions of books still under copyright protection, scan them into digital form, and then make the digital ebooks available to IA website users for free. That action, the court held, violated the publishers’ copyright: “Although IA has the right to lend print books it lawfully acquired, it does not have the right to scan those books and lend the digital copies en masse.”²

IA defended its actions on the grounds that the digital copy of the print book was merely a substitute for the print version it (or a member library) already owned. It argued, in effect, “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.”³ The court’s response: “there is no such right.”⁴

At its heart, the decision by Judge Koeltl recognizes two distinct products and markets: the physical book and its readers; and the ebook and its readers. The decision noted that pricing of print books was not set with an eye towards digital use, that each of the four publishers made its works available separately in an ebook format using a separate fee and licensing system, and that ebook licensing had become a multi-billion dollar industry. The court held that IA’s digitization violated the exclusive rights of the copyright holders to create and distribute the ebooks. It concluded there was nothing transformative about what IA did; rather it simply substituted its free work for a paid copy available from the publishers.

IA founder Brewster Kahle called the ruling “a blow for libraries, readers, and authors and we plan to appeal it.” IA’s director of Open Libraries, Chris Freeland, criticized the decision: “Today’s lower court decision in Hachette v. Internet Archive is a blow to all libraries and the communities we serve. This decision impacts libraries across the US who rely on controlled digital lending to connect their patrons with books online. 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.”⁵

Weighing in from the other side, Maria A. Pallante, President and CEO of the Association of American Publishers, said in a press release: “The publishing community is grateful to the Court for its unequivocal affirmation of the Copyright Act and respect for established precedent. In rejecting arguments that would have pushed fair use to illogical markers, the Court has underscored the importance of authors, publishers, and creative markets in a global society. In celebrating the opinion, we also thank the thousands of public libraries across the country that serve their communities everyday through lawful eBook licenses. We hope the opinion will prove educational to the defendant and anyone else who finds public laws inconvenient to their own interests.”⁶

So… where does this leave things?

If the decision stands, and The Legal Genealogist‘s best judgment is that it will, making an ebook from a copyrighted book is clearly a no-no. It’s not transformative, it’s not a fair use. Having rights to loan out a physical book doesn’t mean the book’s owner has the right to make an ebook copy and loan that out too — or even in place of the physical book. The court’s message is clear: you want to make an ebook available, you buy an ebook license.

More directly and immediately important for the genealogy world is the fact that the court left undecided the matter of the penalty for the infringement found here. IA asked the court to remit any award of damages under a provision of federal copyright law allowing statutory damages to be remitted in certain cases.⁷ The court concluded that any decision on damages was premature.

This is of concern because IA is an essential resource for all of those out-of-copyright materials and books it makes available, and it’s the repository of choice for many records, including those acquired by the Reclaim the Records folks.⁸ We can only hope it won’t be crippled, or even destroyed, by a damage judgment.

Cite/link to this post: Judy G. Russell, “Internet Archive loses copyright case,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 28 Mar 2023).

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