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Court closes the book on free digital library
The copying of small or less important passages is more likely to constitute fair use.
Court closes the book on free digital library
While licensing fees for digital books may burden libraries and reduce access to creative work, authors demand compensation for the copying and distribution of their original creations. The U.S. Court of Appeals for the Second Circuit recently had to balance these interests in a copyright infringement case.
The prologue
Four book publishers sued the Internet Archive (IA) for allegedly infringing their copyrights on 127 books. IA creates digital copies of print books and posts them on its website as part of its “Free Digital Library.”
Other than for a brief period, IA maintained a one-to-one owned-to-loaned ratio for its digital books. It initially allowed only as many concurrent checkouts of a digital book as it possessed in physical form. IA later expanded to include other libraries, counting the number of print copies of a book possessed by those libraries toward the number of digital copies it would make available.
IA asserted a fair use defense to the publishers’ claims. The trial court rejected that defense before trial and ruled in favor of the plaintiffs, leading to an appeal.
IA asserted a fair use defense to the publishers’ claims. The trial court rejected that defense before trial and ruled in favor of the plaintiffs, leading to an appeal.
The court’s body of work
The appeals court analyzed the four statutory fair use factors and found they all weighed in the publishers’ favor:
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Purpose and character of the use. To assess this factor, courts consider the extent to which the defendant’s use is transformative and whether it was commercial — but “transformativeness” is the central question. The court didn’t find IA’s use commercial, nor did it find the use transformative. IA didn’t add “meaningfully new or different features” but merely copied the books in full. And changing the medium of a work, the court said, is a derivative use, not a transformative one.
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Nature of the copyrighted works. The court considered whether the books were expressive or creative. (Fair use is more likely with factual or informational works.) It explained that, though the books included both fiction and nonfiction, even the nonfiction books contained original expression “close to the core of intended copyright protection.”
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3. Amount and substantiality of the use compared to the copyrighted works as a whole. The copying of small or less important passages is more likely to constitute fair use. IA, however,
copied the books in their entirety and distributed them to the public in full, effectively substituting for the publishers’ books.
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Effect of the use on the potential market for or value of the works. The most important factor, this focuses on whether the use usurps — versus simply damaging — the market for the copyrighted work by offering a competitive substitute. In finding that the factor favored the publishers, the court stressed that IA’s Free Digital Library is intended to serve as a substitute for the original books.
The epilogue
Ultimately, the court refused to sanction the “large scale copying and distribution of copyrighted books” without permission from or payment to the copyright holders. The Copyright Act, it concluded, doesn’t allow for widescale copying that deprives creators of compensation and diminishes the incentive to produce new works
