This week, the Second Circuit issued its ruling in the copyright infringement case brought against the Internet Archive over the unlicensed copying and distribution of the major book publishers. The Second Circuit ruled in favor of the publishers.
Several years ago, the Internet Archive (IA), first known for its internet page preservation efforts, the Wayback Machine, began obtaining copyrighted works in hard copy, scanning them, and making them available for download by the general public. No distinction was made for works still in their term of copyright and no permission was sought or obtained.
Rather, IA concocted a theory of fair use that it dubbed “Controlled Digital Lending” (“CDL”). Under that approach, the download of each work was time-limited by technological restrictions and only one user was allowed to possess a copy for each physical copy IA had in its possession. This was meant to approximate traditional/offline library practices and the copyright doctrine of “first sale,” which allows unlimited distribution of a particular authorized copy of work.
Prior commercial models along these lines had previously lost various lawsuits, but , for years, book publishers tolerated this use by non-profit self-described online “libraries” such as IA. In 2020 during COVID quarantine restrictions, IA suspended its CDL limitations and made works available without user limits. The publishers filed suit.
From the start, the IA case was about fair use and the so-called CDL theory. Last Spring, the District Court for the Southern District of NY granted summary judgment for the publishers in a very strongly worded opinion that rejected the CDL theory entirely. The Second Circuit has now affirmed, likewise rejecting CDL and holding that IA’s use was in no way transformative. Indeed, the court found all four fair use factors favored the copyright owners.
This is a big win, not only for authors but creators of every stripe who object to others posting their works online without permission or payment. As one longtime opponent of effective copyright protection admitted, “the death of copyright has been greatly exaggerated.”
The courts in this case understand that it just isn’t right to take others’ copyrighted works and give them away for free. It’s such a basic notion that one wonders who would ever think to argue with it. So, whether it is stealing from the authors and artists themselves, or from the publishers or other distributors who pay the authors and artists, when copyright rights aren’t respected, it hurts creators. And that makes our society poorer.
