CDL Maintains Copyright's 'Balance of Interests,' Says Authors Alliance Brief

Controlled digital lending “maintains copyright’s balance of interests and does not reduce financial incentives for authors,” wrote the Authors Alliance in a 2nd U.S. Circuit Appeals Court amicus brief Thursday (docket 23-1260) in support of the Internet Archive in its copyright case.

IA is appealing a lower court’s decision in March (see 2303270006) in a 2020 copyright infringement case brought by Hachette, HarperCollins, Wiley and Penguin Random House. The publishers claimed IA has cost them millions of dollars and is a threat to their business.

On Aug. 11, U.S. District Judge John Koeltl for Southern New York entered an injunction against IA in connection with 127 covered works, enjoining it from distributing them to the public in any digital or electronic form (see 2308150012). Koeltl narrowed the scope of “covered works” of the injunction in a second order to extend to books that are “commercially available for sale or license in any electronic text format.”

Authors Alliance, with over 2,500 members, is a nonprofit that seeks to “advance the interest of authors who want to serve the public good by sharing their creations broadly,” said the amicus brief. Its interest in the IA case stems from its members’ heavy reliance on libraries such as IA to make their own works available to readers and “to access other literary works for their own research,” it said.

“We think it reasonable and expected that libraries will implement systems” such as CDL “to adapt how they lend books in light of current technology, and to ensure that authors reach readers,” the brief said. CDL also helps preserve literary works, especially for those no longer available commercially, the brief said. A negative ruling in the case on the legality of CDL “would chill those efforts and severely restrict the reach and impact of our work.”

The main question on appeal is whether CDL is permissible under the doctrine of fair use, the brief said. The district court “failed to pay adequate attention to author interests in its opinion” and focused on plaintiffs’ role in the publishing ecosystem “without critically considering whether author and publisher views are consistently aligned,” it said. The word “author” is mentioned just 10 times in the court’s “10,000+ word, 47-page decision, outside of case names,” it said. Publishers may be unified in the belief that “CDL is a lost opportunity at obtaining maximum profit,” the brief said, but “authors themselves have a far more nuanced view.”

Many authors “strongly oppose” the publishers’ actions in bringing the suit “because they support libraries and their ability to innovate,” the brief said. Authors rely on libraries to reach readers, and many are proud to have their works “preserved and made available through libraries in service of the public,” it said.

Publishers’ “concentrated market power” diminishes authors’ “negotiating power to retain sufficient control from publishers to independently authorize public access like that at issue here,” the brief said. Publishers have shown in this suit and elsewhere that their “interests diverge from authors’ on the importance of providing access to readers through libraries,” it said, citing a 2022 blog post voicing authors' objection to Wiley’s decision to remove over 1,300 licensed ebooks from library collections “with little notice.” Authors “depend on courts like this one to take seriously their interests and those of the public,” it said.

Though publishers accuse IA of disrupting the ecosystem and “market equilibrium” for the sale of books online, “that ecosystem has long been out of balance,” due to publishers’ “leveraging of their power to insist on a marketplace in which they exercise almost absolute control over access, preservation, and research,” the brief said.

The Copyright Act “has never accorded rightsholders the sweeping control that publishers seek, as 'in certain circumstances, giving authors [or rightsholders] absolute control over all copying from their works would tend in some circumstances to limit, rather than expand, public knowledge,’” the brief said, citing Authors Guild v. Google. The fair use doctrine strikes a balance, “preserving incentives for authors to create new works while enabling others to build on the knowledge these works advance,” it said, citing Sony Corp. of America v. Universal City Studios.

After the publishers filed this suit, Authors Alliance asked for member and other author feedback to determine their view of CDL, and responses represented “a diversity of views,” including “strong support for CDL,” the brief said. The views were later “bolstered dramatically” by support from leading authors Neil Gaiman, Naomi Klein, Cory Doctorow and over 1,000 authors supporting libraries’ ability to preserve books via CDL, it said.

The lower court concluded that CDL supplants sales and harms the market for the original works under the fourth fair use factor “because publishers would prefer to license ebook editions to libraries,” the brief said. “Of course publishers would prefer reaping a profit through licensing rather than endorse a fair use that does not lead directly to revenue,” it said, arguing that a rightsholder isn’t automatically entitled to additional compensation with every new technical format.

Some “format shifting may be impermissible under the law,” but fair use supports various instances in which users are allowed to shift content to improve the efficiency of delivering content “without unreasonably encroaching on the commercial entitlements of the rights holder” when the improved delivery “was to one entitled to receive the content,” the brief said, citing Capitol Records LLC v. ReDigi Inc.

In an amici brief Wednesday, the Center for Democracy & Technology, Library Freedom Project and Public Knowledge also voiced support for IA, saying the district court's ruling against IA “could profoundly affect longstanding protections for reader privacy and thus affect a core purpose of copyright: public access to information" (see 2312210065).