E-book lending: Internet Archive loses copyright case
Page 2: Element 3: Scope of use
In this section, the judges explicitly address the differences to the decision in the Google Books case. Just like the Internet Archive, Google had scanned books in their entirety, but did not make these complete scans publicly accessible.
Rather, Google makes the content searchable and accessible for statistical analysis; in contrast to the present case, this is a modifying use. And in order to make this possible, Google had to scan the entire works. The Internet Archive, on the other hand, scanned the books in order to replace the publishers' e-books. So the publishers win in this element too.
Element 4: Impact on the market
The impact on the (potential) market for the works is the most serious of the four elements for the judges. Contrary to the publishers' wishes, the judges regard all book versions (printed or electronic) as a common market. However, this does not help the Internet Archive.
It has not been able to show that the online library does not harm the book market. On the contrary, the judges believe that the project is designed to replace buying or renting with lending. "The Internet Archive has usurped a market to which the copyright holders are duly entitled," explains the reasoning behind the ruling.
Any welfare benefits would not outweigh this damage. In general, the advantages are only of a short-term nature. In the long term, lending would be harmful because publishers would then earn less money and publish fewer books.
This means that all four elements favor the publishers; the balancing act is quickly completed: the e-library of the Internet Archive infringes US copyright.
What happens next
The Internet Archive can try to interest an expanded bench of the same court and/or the US Supreme Court in a reconsideration. It has no legal right to do so, and the prospects are also modest. The US District Court is therefore likely to deal with a proposal for a copyright ruling in the case that has already been negotiated by the book publishers and the Internet Archive. This means that the Internet Archive may continue to lend out-of-print books; it remains to be seen whether the works must be available as e-books in order not to be considered out-of-print or whether printed versions are sufficient.
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The case is called Hachette et al v Internet Archive et al and is being heard in the US Federal District Court for Southern New York under case number 20-cv-4160. In the United States Court of Appeals for the Second Circuit, the case number is 23-1260.
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