Appeals court upholds finding that Internet Archive infringed publisher copyright
In the US, a three-judge panel of the Second Circuit Court of Appeals has unanimously affirmed a March 2023 lower court decision by judge John G Koetl that found the Internet Archive (IA) infringed the copyright of publishers by scanning and lending their books, reports Publishers Weekly (PW).
‘In an emphatic 64-page decision, released on September 4, the court rejected the Internet Archive’s fair use defence, as well as the novel protocol known as “controlled digital lending” on which the Archive’s scanning and lending is based,’ said PW.
The Second Circuit rejected the IA’s argument that its scanning and lending was ‘transformative’, a factor in the doctrine of fair use in the US. ‘We conclude that IA’s use of the Works is not transformative,’ the decision states. ‘Instead, IA’s digital books serve the same exact purpose as the originals: making authors’ works available to read.’
PW reported that the court did reject one part of Koeltl’s decision, however: ‘We conclude, contrary to the district court, that IA’s use of the Works is not commercial in nature,’ said the statement. ‘It is undisputed that IA is a nonprofit entity and that it distributes its digital books for free. Of course, IA must solicit some funds to keep the lights on: its website includes a link to “donate” to IA, and it has previously received grant funding to support its various activities.’ In finding IA’s activity was not commercial in nature, the court stated: ‘To hold otherwise would greatly restrain the ability of nonprofits to seek donations while making fair use of copyrighted works.’
As previously reported, publishers Hachette Book Group, HarperCollins, Penguin Random House and Wiley filed the brief in the Second Circuit court of appeals asking that the court uphold Koeltl’s March 2023 finding, after lawyers for IA filed a brief in December 2023 arguing that Koeltl misunderstood the facts and misapplied the law in his finding, and that the decision should be reversed.
PW reported of IA’s current legal options: ‘With the exception of an en banc hearing before the full Second Circuit, the appeals court decision leaves only the Supreme Court left for the Internet Archive, suggesting the case may finally be winding down after years of contentious legal wrangling.’
Category: International news
