Creative Community Rallies World-Wide Support for Property Rights in Landmark Battle Against Internet Archive
A year after judge Koeltl’s finding of copyright infringement by the Internet Archive (rejecting its defense that the IA’s unauthorized scanning and distribution is “fair use”), 6 amicus briefs in support of the plaintiffs have now been filed (after the publishers filed their opening brief on March 15).
Here’s a taste of the sources and types of support rallied in defense of copyrights against The Internet Archive’s unauthorized scanning and distribution:
24 Former Government Officials, Former Judges, and IP Scholars
Whether a defendant’s use is transformative is the heart of the fair use analysis. As the District Court rightfully proclaimed, “[t]here is nothing transformative about IA’s copying and unauthorized lending of the 127 works in suit …. IA does not reproduce the Works to provide criticism, commentary, or information about them… IA “merely repackages or republishes” the original Works – the antithesis of fair use… Here, IA’s creation and distribution of the bootleg ebooks serves the exact same purpose as the Plaintiff publishers’ (“Publishers”) works – i.e., enabling people to read the books… The law is clear that “[a]n author’s right to control and profit from the dissemination of her work ought not to be evaded by [an infringer’s] conversion of the work into a different form.” (pg. 11)
Substitution is “copyright’s bête noire” (id. at 529), but IA refuses to pay the customary price and join the Publishers’ thriving market for authorized library ebooks – creating a direct substitution. (pg. 12)
IA reaches far afield and twists Sony … But Sony only held that it was fair use for users of Betamax machines to “time-shift” free television programs “for private home use.” (p. 12)
All four factors weigh decisively against fair use in the aggregate. Ultimately, IA has no right to turn millions of print books into digital books. It has misappropriated to itself the value of the digital medium, trampling on the exclusive rights of authors and publishers, and interfering with their digital strategies. (p. 70)
IA argues that the “justifications for the National Emergency Library differ from those for ordinary controlled digital lending” (IA Br. 61), but it does not identify any law that entitles it to be a benevolent bestower of the Publishers’ and their authors’ intellectual property. (pg. 71)
The concept of "fair use" sets an outer limit on creators' rights by recognizing that, at some point, a creator's right to control his or her work must give way to the public's interest in using that work for further creative endeavors. But that doctrine does not permit secondary users simply to offer substitutes for original works-and thereby deny creators just rewards for their creative efforts. (pg. 4)
That is precisely what Internet Archive attempts to do here by making unauthorized digital copies of print books and making those copies freely available online. Owning one copy of a copyrighted work does not entitle the owner of that copy to make and distribute additional copies, regardless of what the owner intends to do with their original purchase. Internet Archive seeks to justify its flagrant copying by arguing that its mass digitization program makes it easier and more convenient for libraries to "lend" books to their patrons. But book publishers already offer a similar service in the form of licensed ebooks, and the fair-use doctrine has never permitted secondary users to usurp a legitimate market for a copyright holder's works by offering an unauthorized substitute work for free. (pg. 5)
If it were fair use to digitize a physical book and distribute it without authorization under the guise of "lending" the file online, then there would be nothing to stop future self-anointed "libraries" from doing the same with music, movies, television shows, and journalism, resulting in what would be, in essence, an unlicensed, free streaming service for copyrighted works of all kinds. (pg. 5)
Internet Archive's practice of converting physical books into ebooks is a classic derivative use. (pg. 7)
A central premise of the Copyright Act is that copyright holders may sell copies of their copyrighted works without simultaneously selling the underlying right to make reproductions of those works or create derivative works from them… The corollary is just as true: one who obtains a single copy of a work is not entitled (without authorization from the copyright holder) to make an additional reproduction, whether in the same medium or a different one, regardless of whether that person intends to lock the original copy away and treat the second version as if it were the original. (p. 9)
It Is Not Fair Use To Provide Different Licensing Terms Than The Copyright Holder Has Chosen To Offer … It is not transformative for a third party to simply distribute copies of a copyrighted work-whether in its original or digitized form-on more permissive terms than the copyright holder has chosen to offer. Taken to its logical conclusion, Internet Archive's view of transformative use would allow any unlicensed bootlegger to claim fair use anytime it offered a pirated copy of a book, song, or movie to the public more cheaply, or on laxer terms, than licensed competitors. (pg. 15)
…Sony includes an essential caveat. The secondary use, even if more "efficien[t]," … or "convenient," may be fair use only if it does not "unreasonably encroach[] on the commercial entitlements of the rights holder,"' … A fair use must not excessively damage the market for the original by providing the public with a substitute for that original work." (pg. 17)
Professors and Scholars of Copyright and IP Law
The Copyright Act contains an entire section devoted to exceptions for reproduction and distribution for libraries and archives that is barely mentioned in IA's brief … activities such as preservation, interlibrary loans, and research activities involving particular works. …Although section 108 does not preempt an independent fair use justification for library activities… it does not remotely suggest it is permissible for a library to engage in systematic reproduction or distribution of copyrighted works as an alternative to licensed uses. (p. 16)
…Congress has kept a careful eye on evolving digital technologies and their impact on copyright owners and users, including the library community. From 2013 to 2015, the House Judiciary Committee conducted a comprehensive review of the Copyright Act to determine whether there were areas of the law that should be updated, including existing exceptions for fair use and libraries, as well as the first sale doctrine… The 20 hearings included 100 witnesses representing a wide range of stakeholders, including representatives from the library, publisher, author and user communities… Significantly, Congress chose not to alter existing provisions on fair use, first sale, or library exceptions. (pg. 18)
International Publishers and IP Rights Associations
There are Four Primary Treaties That Govern U.S. and International Copyright Law:
The Berne Convention for the Protection of Literary and Artistic Works
The Agreement on Trade-Related Aspects of Intellectual Property Rights
The WIPO Copyright Treaty
The WIPO Performances and Phonograms Treaty
The U.S. treaty obligations are clear. Having been adopted by the required 2/3 majority set forth in the Constitution of the United States, the four copyright treaties and the three-step test cannot be met by allowing the Internet Archive to reproduce and distribute vast amounts of copyrighted books either as a result of a “pandemic emergency” or as an attempt to create something called “controlled digital lending.” without overturning the Supreme Court’s holdings in Murray and Golan which the Amici urge the Second Circuit not to do. (pg. 19)
… Appellant’s exploits amount to a blatant and harmful frontal attack on licensing of copyrighted content under its flawed notion that any entity that casts itself as a “library” should be entitled to make a digital version of any physical book, regardless of the language and legislative history of the copyright law, under the guise of making it easier to access digital versions. (pg. 4)
The wholesale copying and distribution of copyrighted works is not a fair use but rather constitutes a clear violation of creators’ exclusive rights in their creations by those choosing to give away copyrighted works for their own benefit without permission. (pg. 5)
Merely considering the music and film industries, each has heavily invested in providing the public with digital content that can be listened to or viewed from any device, anytime, anywhere. The catalog of music and film available in digital format is not limited to works “born digital” but includes works from back catalogs of analog music and film productions that have been carefully digitized and preserved and are now available. Appellant’s usurpation of rightsholders’ exclusive rights of reproduction and distribution causes harm by eroding existing markets, which expressly contravenes the intent of copyright. (pg. 6)
…Open Library is not a fair use. Moreover, it is irreconcilable with several fundamental principles of U.S. copyright law, including the statute’s recognition of a copyright owner’s separate exclusive rights of distribution and reproduction… and the express limitations Congress placed on the first-sale doctrine, which permits distribution, but not reproduction, of lawfully-made physical copies of a work... If Open Library’s practices were found legal, any website calling itself a library could copy any in-copyright creative work and “lend” out copies, including in a manner that actually downloads additional copies on users’ computers. This would gravely undermine the incentives to authorship that were set forth in … the Constitution... (p. 3)
The Internet Archive’s reply brief is now due on April 19, and oral arguments are expected to be set for this fall.