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18 Dec 2023
The Internet Archive has a program they call Controlled Digital Lending (CDL). They have scanned a whole lot of physical books, put the books in storage, and then lend out the scans, ensuring that each scan is lent to one person at a time. Publishers don't like this, sued several years ago, and the Archive lost thoroughly in April. The judge ruled on a motion for summary judgment without a trial, which means the judge believed there was no significant dispute about the facts. He found that CDL was not fair use, the scans were a substitute for the paper books, and the Archive lost.
Unsurprisingly, the Archive has appealed the ruling. This looked to me to be a long shot. The appeal is to the Second Circuit which decided the Google Books case. Their decision said that Google's scanning is OK because they don't provide the full contents of the books, but do other stuff that makes it transformative. Since the Archive does provide the full contents of the books, they're out of luck.
The Archive appealed in September but until recently the only activity has been routine stuff like which lawyers will be representing whom On Friday they filed their brief laying out the legal theory of the appeal, and I have to say it's surprisingly strong.They say that the judge misunderstood what CDL is, that he got all four prongs of the fair use analysis wrong, and that there are significant disagreements about facts that prevent summary judgment.
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