As we have discussed, a central theme of U.S. Copyright law is the stimulation of creative ideas, their free exchange, and commercial profitability from them. This is why copyright enforcement is not black-and-white/all-or-nothing – not all infringement is considered damaging. This question has come up regarding a recent ruling from a Southern NY District  Court judge, whose opinion landed in favor of four major publishers against the Internet Archive for mass copyright infringement.

The publishers sued the Internet Archive for copyright infringement over 127 books. The Internet Archive website lent out scanned digital copies of the books in the style of a library. When you get into the details, you can see why this has been far from an open and shut case.

Internet Archive’s Stance: Accessible Knowledge

The Internet Archive bases its digital book lending on a unique logic. Traditional libraries license books and e-books from publishers. Instead of paying a licensing fee, the Internet Archive purchases or receives donations of individual books, scans the pages, and shares those on the internet. 

They do place some restrictions on access. Just one reader at a time can possess the digital copy of the book, much like a real library.

The non-profit library’s mission statement is “to provide Universal Access to All Knowledge.” They profess the viewpoint that traditional, paper libraries are not as accessible to certain populations – for instance, people with learning disabilities or rural residents without easy access to libraries.

The Internet Archive justifies their unusual sharing of copyrighted book scans with the Fair Use Doctrine. This provision allows for copyrighted works to be used in an unlicensed way under certain circumstances such as for educational purposes. 

It is the U.S. Copyright Office’s acknowledgement that the ultimate goal of copyright law is to stimulate creative ideas and expression – and that sometimes, benign infringement is necessary for this. While Fair Use applies on a case-by-case basis, common examples are educational or noncommercial usage.

The Publishers Stance: Mass Copyright Infringement

Four major publishers – Hachette Book Group, HarperCollins, John Wiley & Sons and Penguin Random House – flatly disagreed with the Internet Archive’s reasoning. Their stance is very simple, in a way: “No, you have to license our books the same way that other libraries license our books.” 

Some author groups affirm that licensing helps pay for the many readers who gain access to their work through library lending. Other groups, like the Electronic Frontier Foundation, believe publishers’ bottom line will not be affected, and this suit exerts unnecessary copyright control.

Did the Fair Use Doctrine Justify the Internet Archive’s Actions?

A judge recently ruled on the Internet Archive case, evaluating the four tenets of the Fair Use Doctrine:

• The purpose of the unlicensed use
• The nature of the copyrighted work
• The quantity and substantive material used from the work
• How the value and commercial potential of the work was affected by the unlicensed use

You can read the full ruling here, but basically the judge did not see the Fair Use Doctrine shielding the Internet Archive’s infringement of 127 books. The Internet Archive plans to appeal. 

I am curious to see how publisher, author, and internet information guru opinions evolve as this case goes through the appellate process.