Last year, a United States District Court in the Southern District of New York ruled in favour of four leading book publishers in a copyright infringement suit against the non-profit the Internet Archive for lending digital copies to their users without obtaining prior permission from the publishers.
The four leading publishers are – Hachette Book Group. INC, Harper Collins Publishers LLC, John Wiley and Sons. Inc. and Penguin Random House LLC.
The defendant Internet Archive is a non-profit organisation dedicated to providing, “universal access to all knowledge.” This organization works with libraries, museums, universities and the public to preserve and offer free online access to texts, audio, moving images, software and other cultural artifacts.
This particular case deals with the way libraries lend e-books. Public and academic libraries in the United States spend billions of dollars each year obtaining print books and e-books for their patrons to borrow for free. Copies of e-books however, are typically not bought but licensed to libraries from publishers through distributors called ‘aggregators.’ Publishers task aggregators with ensuring that a library lends its e-books only to the library’s members. Moreover, the aggregators are required to employ approved ‘Digital Rights Management’ (DRM) software and other security measures to prevent unauthorized copying or distribution of e-books files.
Internet Archive’s Modus
The basic modus operandi of the defendants Internet Archive is to acquire print books directly or indirectly, digitally scan them, and distribute the digital copies while retaining the print copies in storage. Internet Archive’s website includes millions of public domain e-books that users can download for free and read without restrictions. The website also includes 3.6 million books protected by valid copyrights, including 33,000 of the titles owned by publishers in the suit. Now, the publishers did not authorize digital copies or to distribute these unauthorized e-books editions on its website.
Internet Archive does not make its e-book copies of copyright protected works available for mass download. Instead, it professes to perform the traditional function of a library by lending only limited numbers of these works at a time through ‘Control Digital Lending’ (CDL)
COVID 19 Pandemic
As the COVID 19 pandemic closed libraries nationwide and took an estimated 650 million books out of circulation. The defendants found themselves, “uniquely positioned to be able to address this problem quickly and efficiently.”
On March 24, 2020, the defendants launched what they called ‘National Emergency Library’ (NEL), intending for it to run “through June 30, 2020 or the end of US National Emergency, whichever is later.” During the NEL, Internet Archive lifted the internet control enforcing its one-two-one owned-to-loaned ratio and allowed upto 10,000 patrons at a time to borrow each e-book on the website. Although the NEL ended on June 16, 2020, and Internet Archive returned to its traditional control digital lending, which remains in effect. Shortly after this the plaintiffs moved court.
Allegations Against Internet Archive
Two years after the NEL, Internet Archive’s user base increased from 2.6 million to about six million. The publishers alleged that the defendants infringed their copyrights in a total of 127 Works in suit. Works in suit are a range of published fiction and non-fiction works. On July 28, 2020, the defendants replied to the allegations, principally asserting a defense of ‘fair use’ with respect to its lending of the Works in suit through Internet Archive online library generally and during the NEL specifically.
After examining the decisions in Authors Guild. INC vs Hathi Trust and Arista Records LLC vs Doe Three. The court observed – “The publishers have established a prima facie case of copyright infringement. First, the publishers hold exclusive publishing rights in the Works in suit and the works were timely registered with the copyright office. Second, IA (Internet Archive) copied the entire works in suit without the publisher’s permission. Specifically, IA does not dispute that it violated the publisher’s reproduction rights by creating copies of the Works suit. IA also violated the publisher’s rights to prepare derivative works by “recasting” the publishers print books into e-books and also violated the publisher’s distribution rights by distributing e-book copies of the Work in suit to IA’s users. IA violated the publisher’s public performance rights, through the “read aloud” function on its website and publisher’s display rights, by showing the Works in suit to users through its in-browers viewer.”
Referring to IA’s argument that this infringement is excused by the doctrine of fair use, the court noted that this doctrine allows some authorized uses of copyrighted works “to fulfill copyrights very purpose, to promote the progress of science and useful arts” (Campbell vs Acuff-Rose Music, Inc.)
Finally, the court noted – “Each enumerated fair use factor favours the publishers, and although these factors are not exclusive, IA has identified no additional relevant considerations. At bottom, IA’s 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 in the other direction. Of course, IA remains entitled to scan and distribute the many public domain books in its collection…
What fair use does not allow, however, is 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 the originals. Because that is what AI has done with respect to the Works in suit, its defense of fair use fails as a matter of law.”
Thus, the plaintiff’s motion for a summary judgment was granted and the defendants’ motion for the same was denied.
Click here to download the judgement.
Author: Nitish Kashyap