Internet Archive Ruling Could Harm Accepted Library Practices: Amicus Brief

A district court’s “merger of uses and failure to analyze each use individually harms libraries” and could impact libraries’ “longstanding, customarily permitted activities,” said an amicus brief Friday (docket 23-1260) from former and current law library directors, professors and academics in support of Internet Archive's appeal to the 2nd Circuit U.S. Court of Appeals.

IA is appealing a lower court’s March decision in a 2020 copyright infringement case that Hachette, HarperCollins, Wiley and Penguin Random House brought (see 2303270006). The case claimed IA cost them millions of dollars and was 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 digital or electronic form (see 2308150012). Koeltl narrowed the scope of “covered works” in a second order to books that are “commercially available for sale or license in any electronic text format.”

Amici curiae are law library directors, professors, graduate students and librarians with “practical experience and expertise with every library function,” who have a “deep understanding of carrying out those functions to fulfill libraries’ public purpose to acquire, preserve, and provide community access to content while balancing and respecting copyright,” said the brief. Amici value controlled digital lending (CDL) “as a tool to accomplish libraries’ public purpose,” the brief said. Amici, along with libraries, library patrons, readers and others who benefit from libraries “may be significantly impacted” by the 2nd Circuit’s decision, it said.

The district court didn’t conduct the necessary “work-by-work analysis” in its fair use determination against IA, and it emphasized economic considerations “to the exclusion of copyright’s public purpose,” the brief said. If the ruling stands, it may “widely render CDL and many other common library practices as potential copyright violations,” it said. A library offering “standard services to connect the public to authors’ works,” such as public reading events, where, “while also conducting usual non-profit activities such as inviting donations through its website could suddenly be targeted for copyright infringement,” the brief said.

Libraries and the Copyright Act share a purpose “to spread knowledge to the public,” said the brief. Libraries rely on “balanced, careful application of the fair use balancing test” to achieve that purpose, the brief said, referring to the need to consider the nature of the copyrighted work, the amount or substantiality of the portion used, and the potential impact of the use on the market or value of the work.

The district court’s decision “collapsed copyright law’s multi-part fair-use balancing test into a theory focused primarily on economics,” the brief said. Its fair-use analysis was broadly applied to IA’s activities “without distinguishing between the many different types of uses of digitized materials at issue in this case,” it said.

In its three points in support of IA, the brief said the district court “failed to account for and appropriately distinguish multiple distinct uses of digitized materials” that have different methods, purposes and impact. Its analysis “drastically expands the definition of commerciality in the fair use balancing test,” which will have a chilling effect on previously legitimate fair uses, “including by libraries as part of their mission to spread knowledge to the public,” the brief said.

And the “expansion of commerciality overrides the purpose” of the Copyright Act to promote the spread of knowledge, the brief said. It also “counters the Copyright Act’s text and Congress’ intention to broadly define fair use to require it to be determined based on each use’s particular circumstances,” the brief said.

Libraries’ “special role” and use of copyrighted works has allowed them to meet changing societal needs and offer meaningful assistance to disadvantaged populations,” including “soldiers abroad, immigrants, the poor, or the elderly and home-bound,” said the brief. Context and purpose matter when assessing alleged copyright infringement, and the fair use test “strikes that balance,” it said. The district court’s approach, if affirmed, “would substantially upset that balance,” it said.