MANHATTAN (CN) — The online library Internet Archive asked a panel of Second Circuit judges on Friday to toss a lower court’s ruling that stated its digital stash of scanned books infringed on the copyrights of some of the largest book publishers in the county.
The service is functionally and legally identical to that of traditional brick and mortar libraries, the Internet Archive’s attorney Joe Gratz told the court.
“This case asks whether it is unlawful for a library to lend a book it has bought and paid for to one person at a time, as libraries have always done,” Gratz argued Friday. “And the answer is no. Libraries have never had to pay publishers to lend the books they own, and that result should not change with the advent of digital technology.”
The Internet Archive started in 1996 as a nonprofit with the goal of providing “universal access to all knowledge” by archiving public web pages to preserve digital history. It later expanded its collections to include other pieces of media including movies, software, audio files and books.
Today, the Internet Archive is home to more than 835 billion web pages, 44 million print materials and 10.6 million videos.
It’s also home to copies of 127 books put out by four of the largest publishers in the country: Hachette Book Group, HarperCollins Publishers, Penguin Random House and Wiley. The publishers sued Internet Archive in 2020, claiming that the nonprofit’s use of their works violated copyright law.
Last year, Judge John Koeltl of the Southern District of New York agreed. He ruled in March 2023 that the Internet Archive’s distribution of their books “deprives the publishers of revenues to which they are entitled as the copyright holders.”
Gratz told the Second Circuit on Friday that Koeltl’s ruling against his client discounted the fact that the Internet Archive operates under fair use.
“The use of digital technology to do something more efficiently, that do the same thing more efficiently, is something that the courts recognize as something that is justified under fair use,” Gratz said.
Gratz cited the 1984 Supreme Court case Sony Corp. of America v. Universal City Studios, Inc., which said copying complete TV shows for time shifting is considered fair use and does not violate copyright law.
“That is, for example, what is going on in the Sony case, where there is a different form that is more convenient using technology, but that conversion is justified because it serves the purposes of copyright,” Gratz argued.
While fair-use application remains somewhat objective in U.S. courts, copyright law states that fair use is more likely to be applied in cases where the use of a work is “transformative.” Gratz argued that the Internet Archive’s scanning of physical books to a digital format is just that.
“In TVEyes … this court characterized converting something using digital technology in a different form, taking a broadcast and turning it into a digital transmission is a form of transformativeness,” Gratz said.
But U.S. Circuit Judge Beth Robinson, a Joe Biden appointee, wasn’t convinced. She raised concerns about Gratz comparing Internet Archive to brick-and-mortar libraries, and seemed skeptical that the service wasn’t infringing on the business of selling both ebooks and hard copies.
“There is, in the real world, a little more friction in the sort of market for passing a paper book from one person to another,” Robinson said. “And I’m imagining that that’s priced into the price of the paper book … We know that there’s a distinct market for those digital books, they’re priced separately. So you’re taking something from one market and you’re inserting it into another market without ever having paid the premium in that new market.”
Gratz countered that data shows digital lending by libraries has no effect on the market for print books and ebooks.
Elizabeth McNamara, who represents the publishing companies, disagreed. She said siding with the Internet Archive would be a “radical change” to existing copyright law that would “destabilize the digital economy” for all media, not just books.
“Internet Archive is making a complete, exact digital copy of the publishers’ print books and distributing them around the world so that they can be read — the exact same purpose for which the publishers are publishing these works,” McNamara said.
McNamara rejected the notion that the Internet Archive was performing a harmless public service. She argued that there are legitimate fears of writers and publishers becoming discouraged from producing and distributing their works, should the court rule against her clients.
“Much of [the Internet Archive’s] brief and amici try to create the impression that the public interest is on their side,” McNamara said. “It is not.”
McNamara argued that protection of copyright incentivizes artists to create new works that benefit society, and that the Internet Archive’s digital lending service “is in direct conflict with that basic principle.”
“You don’t really think that people are going to stop writing books because of the controlled digital lending, do you?” asked Donald Trump-appointed U.S. Circuit Judge Steven Menashi.
“Well, I think publishers are going to go down the tubes if they do not have the revenue,” McNamara shot back.
The parties sparred for over an hour on Friday, going well past the 20 minutes allotted for the arguments on this matter. Joining Menashi and Robinson on the three-judge panel was U.S. Circuit Judge Maria Kahn, who was appointed by Biden last year. The judge’s didn’t immediately issue a ruling on Friday.
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