District Court's IA Ruling Focused on 'Wrong End' of Copyright Equation, Says Copia

The district court’s decision in the copyright infringement case against Internet Archive “puts copyright law at odds with the Constitution,” said the Copia Institute’s Dec. 22 amicus brief (23-1260) in support of IA's appeal before the 2nd U.S. Circuit Appeals Court.

IA is appealing a lower court’s March decision in a 2020 copyright infringement suit brought by Hachette, HarperCollins, Wiley and Penguin Random House (see 2303270006) claiming 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.”

Copia Institute owns online publication Techdirt, which has published more than 70,000 articles over nearly 25 years covering freedom of expression and copyright, said the brief. The Copia Institute produces white papers about tech policy and files regulatory comments and advocacy briefs “with the goal of influencing good policy that promotes and sustains innovation and expression,” it said. Many of those filings have involved the same issues at the core of IA’s appeal, it said.

The right of free expression “transcends the bare ability to express oneself,” and also includes “a right to read” and “the right to ‘receive information and ideas,’” the brief said, saying “democracy itself depends on it.” The fair use doctrine permits courts to avoid rigid application of the copyright statute when it would “stifle the very creativity which that law is designed to foster,” said the brief, citing Campbell v. Acuff-Rose Music. For Copia, access to books on the Internet Archive has “provided fodder for entire pieces of writing further exploring ideas and topics raised by the original work,” it said.

“A world where the district court is right, and what the Internet Archive did was wrong, is a world where copyright law harms the very outcome it was intended to enable,” said the brief. IA has "legally-obtained books, and the public is full of people wanting to read books,” it said. The district court’s decision represents “the unprecedented proposition that law can stand between them, even though copyright law itself, and the values of the First Amendment, would require otherwise,” it said.

The district court’s decision “focuses on the wrong end of the copyright equation -- the exclusive rights of creators -- instead of the benefit the public is supposed to receive,” the brief said. Copyright law is supposed to be for the benefit of the public, “not the creators,” it said. Restricting access to books “that could have lawfully been shared in physical form fails the public,” and it is “their rights that have become trammeled, and not in service of anything copyright law is intended to achieve,” it said.

An irony of the decision is that IA was providing a remedy for readers during the COVID-19 pandemic in response “to the unconstitutional deprivations to readers caused by other state action” when schools and libraries were closed and books were unavailable, said the brief. IA provides online access to schools' or libraries' books “because their bookshelves are too far away, or because their shelves have been emptied by overzealous censors,” it said.

Copyright law “should want to promote access to works, because it does nothing to promote progress if the law incentives the creation of works that no one can actually enjoy,” said the brief. In IA’s case, enabling books that were already lawfully readable to be read “is what copyright law should instead be glad for the Internet Archive to do.”