The Internet Archive has filed its final reply brief in Hachette v. Internet Archive, the closely watched copyright case involving the scanning and digital lending of library books. And with the appeal now fully briefed, the U.S. Court of Appeals for the Second Circuit has calendared the case for oral argument for the week of June 24.
In their brief, IA attorneys reiterate their belief that federal judge John G. Koeltl misunderstood the facts and misapplied the law in finding that IA’s scanning and lending of print library books under a novel practice known as controlled digital lending (CDL) infringed publishers’ copyrights, and should be reversed. Specifically, the brief maintains that the IA's scanning and lending of library books is transformative because it expands the ability of libraries to lend books to its patrons, expanding the utility of the library.
“Controlled digital lending permits libraries to do something they have always done: lend books to one person at a time, but through new, distinct, and more efficient means,” the brief states. “Publishers concede that IA’s borrowers are entitled to read the content of the book. They merely quibble over the form of delivery, claiming that patrons are entitled to borrow the book physically, but not read it electronically. But what matters is whether the borrowers are entitled to receive the content. Borrowers need not receive the content in the exact same format and manner; indeed, improving efficiency of delivery often requires changing format.”
The brief also disputes the judge's finding that the scanned books risk supplanting the licensed library e-book market.
“Controlled digital lending expands the utility of the physical books libraries already own; licensing access to e-books cannot do that because it does not allow ownership and therefore, cannot fully serve library missions the way controlled digital lending does,” IA lawyers explain. “Controlled digital lending permits libraries to build permanent collections and to archive and lend older books in a form that preserves their original printing. Publishers’ e-book licenses cannot serve this preservation mission because they are not photographs of the original editions, and ongoing access depends on Publishers’ discretion and is subject to change without notice. And controlled digital lending permits libraries to honor their core commitment to protect patron privacy while borrowing, while e-book licensing does not.”
The brief also challenges a finding in Koeltl’s ruling that has rattled nonprofits outside the case: that the IA’s e-book lending activities are “commercial” in nature, despite the IA’s status as a nonprofit, because the IA can receive donations, made a small amount of money from affiliate links, and potentially received a reputational or membership boost from its scanning program. “Calling such a nonprofit use ‘commercial’ twists the word beyond recognition,” the IA brief argues.
The IA’s final appeal brief comes just over a year after Koeltl delivered an emphatic 47-page decision in which he found the IA’s scanning and lending program to be copyright infringement.
“At bottom, 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,” Koeltl wrote, granting the publisher plaintiffs’ motion for summary judgment and denying the Internet Archive’s cross-motion. “But no case or legal principle supports that notion,” he concluded. “Every authority points the other direction.”
In their appeal brief, filed last month, the plaintiff publishers said Koeltl got the case right, and argued that the ruling should be affirmed. "In short, IA’s practice of CDL is radical and unlawful," the publishers’ appeal brief argued, adding that a decision deeming CDL fair use “would have a dire impact on book publishing and all creative industries” and would be seen as a green light by “other technology companies” to “implement their own unchecked mass-digitization programs for books and other media."
In a statement, IA founder Brewster Kahle, reiterated his position that the case is about “standing up for the digital rights of all libraries” and “ensuring that future generations have equal access to the wealth of knowledge” contained in library collections.
“Resolving this should be easy,” Kahle said. “Just sell e-books to libraries so we can own, preserve and lend them to one person at a time.”
