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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.
They start by noting that the point of fair use is to advance the goals of copyright, and in the U.S. that goal is to get material into the hands of people who read it. There's no question that CDL does that, but the question is whether its benefits are outweighed by the injury to the publishers. Needless to say, IA says that the benefit is huge and the injury is minimal. While this is a reasonable argument, it's also one that the judge completely rejected earlier this year.
They also say that CDL provides limited access to scanned books, which is unlike the unlimited access that Napster provided to music, or that the hypothetical publicly available Google Books would. They also say that CDL of purchased books is a different product than the publisher's ebook rentals through Overdrive. Again, this is not unreasonable, but again, the judge rejected it.
There is a long discussion about the unlimited lending they did during the Covid shutdown, claiming that the number of books they lent was far less than the number locked up in closed school libraries. (The most borrowed book was The Lion, the Witch, and the Wardrobe, borrowed 888 times.)
What I think is their strongest argument is the one they make about the fourth fair use factor, the financial damage to the publishers. Both sides had experts who of course came to different conclusions. But IA says that regardless of the analysis, that difference is a disagreement about facts, which makes summary judgment premature. Again, it seems reasonable, but since I haven't seen the expert reports and I can't because they contain confidential business information and so were filed under seal, I'll have to take their word for it.
There's no way the Second Circuit is going to reverse and tell IA that they win, but I think there is a reasonable chance that they will tell the judge that there are fact questions so the case has to go to trial. That would be great for IA, because at a trial, a jury makes the decision and I would expect a jury of normal people to think that CDL is great, the publishers are greedy, and of course CDL is legal.
Next up is the publishers' reply and a lot of amicus briefs. Hathitrust, the library consortium that contains the Google Books scans, has already said they'll file one and we'll surely see many more.
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