How the Internet Archive’s ‘Free Digital Library’ Failed the ‘Fair Use’ Test
How the Internet Archive’s ‘Free Digital Library’ Failed the ‘Fair Use’ Test
By Damon Root | Published: 2024-11-30 16:00:00 | Source: The Present – Big Think
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It was an idea that probably didn’t stand a chance in the long run. Since 2005, the Internet Archive, a non-profit entity dedicated to “providing universal access to all knowledge,” has been digitizing paperback books and posting copies on its website, where users can read them for free. In 2018, the Internet Archive began partnering with several libraries across the county to provide online access to their physical holdings as well.
“Not everyone has access to a public or academic library with a good collection,” says the Internet Archive, “so, to provide universal access, we need to provide digital copies of books.” This thinking led to the creation of the Internet Archive’s “Free Digital Library” and “Open Library Project,” where “one reader at a time can read a digital copy of a legally owned library book.”
Seems like a safe and non-controversial idea, right? Not exactly.
In September 2024, the US Court of Appeals for the Second Circuit found that the Internet Archive violated federal law for “large-scale copying and distribution of copyrighted books without permission from or payment to the publishers or authors.” To allow such behavior to continue, the Second Circuit declared Hachette Book Group v. Internet Archive“It would allow widespread copying that deprives creators of compensation and reduces the incentive to produce new works.”
Copyright law is a jagged rock on which many promising ideas have crashed. In this particular case, the dangerous legal text turned out to be Article 107 of the Copyright Act, which governs “fair use of a copyrighted work.” Under this provision, a copyrighted work may be made fair use without permission from the copyright holder “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”
According to the Internet Archive, this language should be read to fully protect both collecting and lending practices in its free digital library. “The record is full,” group He pointed out“With examples of internal auditing facilitating access to books needed for classroom use and academic research that would not otherwise be possible.”
There is no doubt that the Internet Archive has been a great boon to students, teachers, and scholars. In fact, I can personally attest to this fact. When I was doing my research The last book Regarding Frederick Douglass and the Constitution, I was grateful for the many dusty old volumes that the Internet Archive effectively placed at my fingertips. Countless other writers and researchers would certainly say something similar.
But the problem for the Internet Archive is that Section 107 also states that certain other factors must be taken into account “in determining whether the use of the work in any particular case is a fair use.” One such factor is “the effect of the use on the potential market for or value of the copyrighted work.” In other words, fair use does not include undermining the commercial viability of the copyrighted work.
This is where the Internet Archive’s legal problems arose. In 2020, an alliance of four book publishing giants — Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House — was formed.Suit filedalleging that “the unauthorized copying and distribution of plaintiffs’ works in the Internet Archive includes titles that publishers currently sell commercially and currently provide to libraries in e-book form, making defendant’s work a direct substitute for existing markets.”
Unlike traditional public libraries, which “purchase print books and license e-books (or agree to e-book sales terms) from publishers,” the four publishers said in their lawsuit, the Internet Archive commits “willful mass copyright infringement” and then distributes “illegal digital copies over the Internet.”
Unfortunately for the Internet Archive, the Second Circuit shared this negative assessment of the situation. “Is it ‘fair use’ for a nonprofit organization to scan copyrighted print books in their entirety and distribute those digital copies online, in their entirety, free of charge, subject to a one-to-one owned-to-loan ratio between its print copies and the digital copies it makes available at any time, all without obtaining permission from the publishers or authors who own the copyright,” the Second Circuit asked. “We conclude that the answer is no.”
In the Second Circuit’s view, the Internet Archive “does not perform the traditional functions of a library.” Instead, it “prepares derivatives of publishers’ works and delivers those derivatives to its users in full.” In other words, the court said, the Internet Archive is offering free, illegal copies of what publishers and authors alone have the exclusive legal right to sell or otherwise distribute.
Moreover, the Court of Appeal declared that “if we approve business use of IA, there would be no good reason for consumers or libraries to pay publishers for content they can access for free on an IA website.” All of this made it “self-evident” to the Second Circuit, “that if the use of IA becomes widespread, it will negatively impact publishers’ markets for businesses.”
For these reasons, the Internet Archive failed the fair use test, as interpreted by the Second Circuit. Of course, the Internet Archive will likely appeal its loss, but this does not guarantee a better outcome. In fact, given the accuracy of the Second Circuit’s ruling, as well as the uncharitable language of the Copyright Act, the Supreme Court may not bother to hear an appeal on this issue.
This result may be good news for publishers who want to sell more e-books. But is this good news for authors and readers in general?
Writer Virginia Postrell specializes in the intersection of culture and technology at one time Notice The advent of the Internet has taken us from “a world in which reading material was scarce and relatively expensive to a world in which it is abundant and almost free.”
For many authors, this has made it more difficult to even get attention for their books in the first place. Furthermore, Postrel noted, “For increasing numbers of readers, a book that doesn’t show up in a Google search or can’t be linked in some way online may not exist.”
The Internet Archive has stood as a kind of bulwark against this very trend. Its free digital library captured such titles and helped ensure that future readers might one day discover them online. But as a result of the ruling in this case, this bulwark has been weakened, if not fatally undermined.
“Knowledge embodied in books deserves to be preserved, not destroyed, and especially not destroyed at the request of authors and publishers,” Postrel told me of the Second Circuit’s decision. “The ruling couldn’t be worse. Forcing the Internet Archive to destroy digital copies — to burn digital books — goes far beyond protecting authors’ rights to profit from their copyrighted works. By destroying the ability to search those books, it will likely lead to lower sales. And when you discover that a book discusses a topic that interests you, you’re more likely to buy it.”
However, Postrell added, “If I were on the board of the Internet Archive, I would have argued against the Free Digital Library.” Why? “Not because the archive case was wrong, but because their definition of fair use was too aggressive and too risky for the institution,” she says.
The damage caused by this danger has now certainly been done. It remains to be seen whether the Internet Archive will fully recover from the legal loss.
this condition Originally published by our sister site Freethink.
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