Half-Dozen Amicus Briefs Support Publishers in IA's Appeal of Copyright Ruling

Internet Archive's theory that its controlled digital lending (CDL) program is protected by fair use under the Copyright Act would have “devastating consequences” for the music, movie and news media industries if the 2nd U.S. Circuit Appeals Court reversed a lower court's decision, said an amicus brief Friday (docket 23-1260) from the Recording Industry Association of America, National Music Publishers’ Association, Motion Picture Association and the News/Media Alliance.

The amicus brief was one of six filed Friday in support of Hachette, HarperCollins, Wiley and Penguin Random House, which sued IA for copyright infringement and won in U.S. District Court for Southern New York in Manhattan last spring. IA is appealing the decision in which U.S. District Judge John Koeltl ruled fair use factors favored the publishers and that nothing in copyright law or precedent supported CDL.

Amici and their members have a “powerful interest in the proper resolution of this appeal” in which IA’s theory of fair use “stretches far beyond both precedent and common sense,” said the brief. Accepting IA’s “invitation to break new ground” in copyright law would “not only upset longstanding and well-reasoned fair-use principles but also pose a grave risk to amici’s members, which depend on copyrights to protect their creative works in an increasingly digital market,” it said.

The concept of “fair use” sets an outer limit on creators’ rights by recognizing that creators’ right to control their work must give way at some point to the public’s interest in using the work “for further creative endeavors,” said the brief. But the doctrine doesn’t permit “secondary users simply to offer substitutes for original works -- and thereby deny creators just rewards for their creative efforts,” said the brief, saying that’s what IA attempts to do by making “unauthorized digital copies of print books … freely available online.”

Owning one copy of a copyrighted work doesn’t entitle the owner of the copy to make and distribute more copies, “regardless of what the owner intends to do with their original purchase,” said the brief. IA justifies its “flagrant copying by arguing that its mass digitization program makes it easier and more convenient for libraries to ‘lend’ books to their patrons,” but book publishers “already offer a similar service in the form of licensed ebooks,” the brief said. The fair use doctrine “has never permitted secondary users to usurp a legitimate market for a copyright holder’s works by offering an unauthorized substitute work for free,” it said.

The brief noted examples of unauthorized copying and distribution that have challenged the music, TV, movie and news media industries, including Napster in the late 1990s, BitTorrent in the 2000s and illicit streaming in the 2010s. “Digital piracy has inflicted a huge economic toll on those industries and, by extension, on their ability to invest in new creative works and the artists who make them,” it said.

The brief called IA’s theory of fair use a “threat just as grave.” If it were “fair use to digitize a physical book and distribute it without authorization under the guise of ‘lending’ the file online, then there would be nothing to stop future self-anointed ‘libraries’ from doing the same with music, movies, television shows, and journalism,” the brief said. That could result in an “unlicensed, free streaming service for copyrighted works of all kinds,” it said.

Courts have consistently held that it's not “transformative” to convert a physical CD or DVD into a digital file, or as IA does -- a novel to an e-book -- said the brief. Such digital conversions are “'[p]aradigmatic examples of derivative works’ because they merely ‘repackage or republish the original copyrighted work’ in an alternative format,” the brief said, citing Authors Guild, Inc. v HathiTrust.

IA defends its “scan-and-share” program by saying that because it could lend its print books to anyone by shipping them, it should be able to avoid the “burdens of physical transportation” by scanning and sending digital copies instead, said the brief. That argument implies that owning a physical copy of a work “entitles its owner to convert the work into a digital format and then distribute the digital copy to others,” it said. That assumption is “plainly incorrect,” said the brief. When IA buys a book, or a consumer buys a CD, DVD or a digital music file, “that purchase includes only a delimited set of rights,” it said.

That IA has the right to ship a book by mail doesn’t create an “an implicit right to copy the content of the book and distribute it via the internet,” said the brief. Just as record labels don’t sell the right to digitize and distribute the contents of an album when they sell a physical CD, book publishers don’t sell the right to scan and distribute e-books when they sell a physical print book, it said.

In another amicus brief supporting the book publishers, 13 professors and scholars of copyright and intellectual property argued that “there can be no debate” about the “nontransformative, substitutional nature” of IA’s “copying.”

According to IA and its collaborators -- including representatives from the library community -- under CDL, an institution may digitally reproduce a physical book without a license and distribute the digital copy through an online lending program as long as there’s a copy of the physical book somewhere on site at the lending institution or at an allied institution, said the professors' brief. They support their position as fair use under section 107 of the Copyright Act and under the “first sale” doctrine in section 109 that permits libraries to lend physical books, it said.

But Section 109 “does not extend to the distribution of digital copies and there is no fair use precedent that remotely supports mass copying and digital distribution of books in competition with authorized digital versions," the brief said.

Its supporters have presented CDL as a “well-established and legitimate library practice,” said the professors’ brief, but “in reality it is neither sanctioned by the Copyright Act nor supported by legal precedent.” The brief cited Koeltl’s opinion that there’s no authority to support the notion “that systematic digital scanning of physical books in a library’s collection for distribution to the public constitutes a fair use of those books.” All judicial precedent “is to the contrary,” it said.

“The unauthorized reproduction and digital distribution of copyrighted works by IA and others disrupts a significant, well-developed digital licensing market for e-books and diminishes compensation to rightsholders and authors,” said the professors’ brief. “A broad exception to copyright protection resulting in such consequences is not something that can or should be enacted through a self-defined policy of parties who stand to benefit,” it said.

CDL is not “the natural evolution of libraries in the digital age,” said another amicus brief filed by 24 former government officials, judges and IP scholars. “Rather, like Frankenstein’s monster, it is an abomination composed of disparate parts of copyright doctrine,” and if the 2nd Circuit endorsed it, “it would undermine the constitutional foundation of copyright jurisprudence and the separation of powers.”

On IA’s assertion of the existence of a “digital first sale” doctrine that would permit the reproduction and distribution of copyrighted works, that principle “is in direct conflict with Congress and the Copyright Office’s repeated study (and rejection) of similar proposals,” said the brief. Physical and digital copies are different, and it isn’t an accident that first sale applies only to the distribution of physical copies, it said. “Ignoring decades of research and debate, IA pretends instead that Congress has somehow overlooked digital first sale, yet left it open to the courts to engage in policymaking by shoehorning it into the fair use doctrine,” it said. IA seeks “to gain in the courts what CDL’s proponents have not been able to get from Congress,” it said.

No court “has ever found that reproducing and giving away entire works -- en masse, without permission, and without additional comment, criticism, or justification -- constitutes fair use,” said the brief. IA’s CDL theory “is a fantasy divorced from the Constitution, the laws enacted by Congress, and the longstanding policies that have informed copyright jurisprudence,” it said. The appeals court “should reject IA’s effort to erase authors and publishers from the copyright system.”

A brief led by the Authors Guild, representing authors, photographers, and licensors, asserted IA’s infringements have and will continue to cause “significant harm” to members whose works are part of the “'long tail’ of older published works that earn much of their revenue from licensed electronic uses rather than sales of new copies.” Authors and other creators today generally earn “so little from their writing” that they rely on income from “the long tail, and even a seemingly minor reduction in such income will materially impact the authors, visual artists, photographers, and other creators who depend on the income for survival,” the guild's brief said.

Creators and their publishers will find it challenging to bring older titles back into print, whether in physical or electronic form, “if they must compete with free Open Library-generated ebooks from IA,” said the brief. In Open Library, IA has created a “vast unauthorized online database of literary works that anyone in the world can access for free, which differs from the most flagrantly illegal pirate websites only by reason of its residing in a U.S. not-for-profit,” said the brief. IA has reproduced and distributed digital copies of publishers’ works under the “pretext that it is merely a library, loaning 'books’” to its patrons by means of CDL, “which in reality is neither controlled nor limited to lending,” it said.

Such e-books will create “a direct market substitute for authorized lending by libraries outside the U.S.,” said the authors’ brief. Unlike Open Library, that lending “generates royalties for creators under the public lending right recognized by most other developed countries,” it said. CDL “undermines the careful balancing of interests that Congress codified in the Copyright Act and poses a grave threat to the livelihoods of countless individual copyright owners,” it said.

Amici representing international copyright holders also supported the book publishers, urging the 2nd Circuit to uphold the district court’s ruling. U.S. treaty obligations require the U.S. to abide by four copyright treaties and a three-step test that can’t be met by allowing IA “to reproduce and distribute vast amounts of copyrighted books either as a result of a ‘pandemic emergency’ or as an attempt to create something called ‘controlled digital lending,’” said the international amici's brief.

In its amicus brief, the Copyright Alliance, representing the interests of over 2 million creators and 15,000 industry organizations, said allowing IA to scan and distribute large collections of digitized copyrighted works “to any user anywhere for free” would “undermine existing licensing markets and strip creators and rightsholders of their statutory rights to control how they commercialize their works.”

IA “purports to provide the public with content it wants in the format it wants,” said the alliance's brief, but the district court “correctly noted that the content and format that the public desire are already being provided” by book publishers, “as evidenced by the thriving market for authorized digital eBooks.”

A reversal of the lower court’s decision would condone “unauthorized activities with far-reaching effects beyond the publishing industry that threaten to damage, if not destroy, entire markets necessary to support the development of creative works," said the alliance’s brief. “It may start with books, but could quickly threaten motion pictures, music, video games, and other works that enrich society.”