Vindicating the NWU’s position, a federal District Court judge in New York City has ruled that the Internet Archive infringed authors’ and publishers’ copyrights when it made and distributed unauthorized digital copies of printed books.
This decision is almost certain to be appealed to the Court of Appeals for the 2nd Circuit, but it’s a good first step. It’s noteworthy that the decision was released just days after the oral argument in the case, suggesting that the finding of copyright infringement was clear and obvious.
According to the court’s decision:
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 the other direction. Of course, IA remains entitled to scan and distribute the many public domain books in its collection. It also may use its scans of the Works in Suit, or other works in its collection, in a manner consistent with the uses deemed to be fair in Google Books and HathiTrust. 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 IA has done with respect to the Works in Suit, its defense of fair use fails as a matter of law.
The court also found that, as we have said all along, what the Internet Archive is doing isn’t what it has claimed to be doing. Despite its false and misleading cover story about so-called Controlled Digital Lending, the Internet Archive routinely distributes multiple copies of multiple versions of the same work (including what the court characterized as “IA’s bootleg ebooks”) simultaneously:
Nor does IA’s promise not to lend simultaneously its lawfully acquired print copies and its unauthorized reproductions help its case. As an initial matter, IA has not kept its promise…. IA concedes that it has no way of verifying whether Partner Libraries remove their physical copies from circulation after partnering with IA. To the contrary, IA knows that some Partner Libraries do not remove the physical books from their shelves, and even if a Partner Library puts a physical book into a non-circulating reference collection, it could be read in the library while the ebook equivalent is checked out. Id. IA also does not inform Partner Libraries when an ebook in its collection is checked out, and Partner Libraries do not tell IA when their physical copies are circulating.
The Internet Archive says that this decision “hurts authors by saying that unfair licensing models are the only way their books can be read online.” But this gets it backwards. It’s the Internet Archive that imposed its own model of how it thought authors should distribute digital copies of our work, for free, denying authors our right to choose our business models. Authors can and do choose to make our work available and authorize digital copying and distribution of our work in many other ways.
We continue to seek dialogue with librarians and archivists concerning e-books and writers’ rights: “We appeal for a dialogue among writers, authors, publishers, and librarians on how to enable and create the digital libraries we all want, in ways that fully respect authors’ rights.”