The question before the court: Is it ‘fair use’ for a nonprofit organization to scan copyright-protected print books in their entirety, and distribute those digital copies online, in full, for free?
A court in New York has ruled that creating and distributing digitised copies of printed books by the Internet Archive (IA) is not a fair use and amounts to violation of copyright.
The Second Circuit Court of Appeals on 4th September affirmed an earlier decision by a lower court, on a petition filed by a group of book publishers, including Hachette, Penguin Random House, HarperCollins and Wiley.
The court rejected IA’s defence that its lending was a legitimate fair use because it was being done on a one-to-one owned-to-loaned ratio as libraries do, and that its digital lending was transformative for society.
The court said: “IA copies the Works in full and makes those copies available to the public in their entirety. It does not do this to achieve a transformative secondary purpose, but to supplant the originals. Here, not only is IA’s Free Digital Library likely to serve as a substitute for the originals, the undisputed evidence suggests it is intended to achieve that exact result.”
On the contention that I.A. was similar to a traditional library, the court said: “This characterization confuses IA’s practices with traditional library lending of print books. IA does not perform the traditional functions of a library; it prepares derivatives of Publishers’ Works and delivers those derivatives to its users in full.”
Further, it said: ” […] to construe IA’s use of the Works as transformative would significantly narrow―if not entirely eviscerate―copyright owners’ exclusive right to prepare (or not prepare) derivative works.”
Before the case came to the appeals court, the district court too had rejected IA’s contention that its lending was covered under ‘fair use’ principle.
“At bottom, IA’s fair use defence rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorised 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 the other direction,” the district court judge ruled in March 2023.
“While IA claims that prohibiting its practices would harm consumers and researchers, allowing its practices would―and does―harm authors,” the appeals court concluded.
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