Above The Law on a very bizarre ruling by 2nd circuit re Internet Library
The Second Circuit has upheld the lower court ruling and found that the Internet Archive’s Open Library is not fair use and therefore infringes on the copyright of publishers (we had filed an amicus brief in support of the Archive asking them to remember the fundamental purpose of copyright law and the First Amendment, which the Court ignored).
Even though this outcome was always a strong possibility, the final ruling is just incredibly damaging, especially in that it suggests that all libraries are bad for authors and cause them to no longer want to write. I only wish I were joking. Towards the end of the ruling (as we’ll get to below) it says that while having freely lent out books may help the public in the “short-term” the “long-term” consequences would be that “there would be little motivation to produce new works.”
Which is just all kinds of disconnected from reality. There is not a single person in the world who thinks “well, I would have written this book, except that it would be available for people to borrow for free from a library, so I guess I won’t.” Yet a three-judge panel on the Second Circuit concludes exactly that.
As you’ll recall, the Open Library is no different than a regular library. It obtains books legally (either through purchase or donation) and then lends out one-to-one copies of those books. It’s just that it lends out digital copies of them. To keep it identical to a regular library, it makes sure that only one digital copy can be lent out for every physical copy it holds. Courts have already determined that digitizing physical books is fair use, and the Open Library has been tremendously helpful to all sorts of people.
The only ones truly annoyed by this are the publishers, who have always hated libraries and have long seen the shift to digital as an open excuse to effectively harm libraries. With licensed ebooks, the publishers have jacked up the prices so that (unlike with regular books), the library can’t just buy a single copy from any supplier and lend it out. Rather, publishers have made it prohibitively expensive to get ebook licenses, which come with ridiculous restrictions on how frequently books can be lent and more.
It was clear that the only reason all the big publishers sued the Internet Archive was to put another nail in the coffin of libraries and push to keep this ebook licensing scheme grift going. Now the courts have helped.
This ruling from the Second Circuit pushed back a little bit on one of the most overbroad parts of the district court’s ruling. The judge there seemed to have decided how he was going to rule long before oral arguments even happened, as he published his ruling the very same week as the arguments, and he twisted things to favor the publishers on every single issue, even arguing that because the Internet Archive — a non-profit — asks for donations, that makes everything it does a “commercial activity.” However, this ruling is still really problematic, and arguably in significant conflict with other circuits.
The key part of the case is whether or not the Internet Archive’s scanning and lending of books is fair use. The Second Circuit says that it fails the fair use four factors test. On the question of transformative use, the Internet Archive argued that because it was using technology to make lending of books more convenient and efficient, it was clearly transformative. Unfortunately, the court disagrees:
We conclude that IA’s use of the Works is not transformative. IA creates digital copies of the Works and distributes those copies to its users in full, for free. Its digital copies do not provide criticism, commentary, or information about the originals. Nor do they “add[] something new, with a further purpose or different character, altering the [originals] with new expression, meaning or message.” Campbell, 510 U.S. at 579. Instead, IA’s digital books serve the same exact purpose as the originals: making authors’ works available to read. IA’s Free Digital Library is meant to?and does?substitute for the original Works
The panel is not convinced by the massive change in making physical books digitally lendable:
True, there is some “change” involved in the conversion of print books to digital copies. See Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104, 108 n.2 (2d Cir. 1998) (“[A] change in format . . . is not technically a transformation.”). But the degree of change does not “go beyond that required to qualify as derivative.” Warhol II, 598 U.S. at 529. Unlike transformative works, derivative works “ordinarily are those that re-present the protected aspects of the original work, i.e., its expressive content, converted into an altered form.” Google Books, 804 F.3d at 225. To be transformative, a use must do “something more than repackage or republish the original copyrighted work.” Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 96 (2d Cir. 2014); see also TVEyes, 883 F.3d at 177 (“[A] use of copyrighted material that merely repackages or republishes the original is unlikely to be deemed a fair use.” (internal quotation marks omitted)). Changing the medium of a work is a derivative use rather than a transformative one.
