Internet Archive: Digital Lending Is Fair Use, Not Copyright Infringement

Ernesto Van der Sar reports via TorrentFreak: Internet Archive has filed its opening brief in its appeal of a court ruling which found its digital lending program copyright-infringing. The Archive believes the decision should be reversed on the grounds that its lending activities amount to fair use. Founder Brewster Kahle believes the legal battle is vital for the future of all libraries in the United States and around the world. [ 'This lawsuit is about more than the Internet Archive; it is about the role of all libraries in our digital age,' says IA founder Brewster Kahle. 'This lawsuit is an attack on a well-established practice used by hundreds of libraries to provide public access to their collections. The disastrous lower court decision in this case holds implications far beyond our organization, shaping the future of all libraries in the United States and unfortunately, around the world.']

Whether IA has a fair use defense depends on how the four relevant factors are weighed. According to the lower court, these favor the publishers but the library vehemently disagrees. On the contrary, it believes that its service promotes the creation and sharing of knowledge, which is a core purpose of copyright. 'This Court should reverse and hold that IA's controlled digital lending is fair use. This practice, like traditional library lending, furthers copyright's goal of promoting public availability of knowledge without harming authors or publishers,' the brief reads. A fair use analysis has to weigh the interests of both sides. The lower court did so, but IA argues that it reached the wrong conclusions, failing to properly account for the 'tremendous public benefits' controlled digital lending offers.

One of the key fair use factors at stake is whether IA's lending program affects (i.e., threatens) the traditional ebook lending market. IA uses expert witnesses to argue that there's no financial harm and further argues that its service is substantially different from the ebook licensing market. IA offers access to digital copies of books, which is similar to licensed libraries. However, the non-profit organization argues that its lending program is not a substitute as it offers a fundamentally different service. 'For example, libraries cannot use ebook licenses to build permanent collections. But they can use licensing to easily change the selection of ebooks they offer to adapt to changing interests,' IA writes.

The licensing models make these libraries more flexible. However, they have to rely on the books offered by commercial aggregators and can't add these digital copies to their archives. 'Controlled digital lending, by contrast, allows libraries to lend only books from their own permanent collections. They can preserve and lend older editions, maintaining an accurate historical record of books as they were printed. 'They can also provide access that does not depend on what Publishers choose to make available. But libraries must own a copy of each book they lend, so they cannot easily swap one book for another when interest or trends change,' IA adds. A copy of the Internet Archive's opening brief, filed at the Second Circuit Court of Appeals, is available here (pdf)

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