Despite the copyright verdict: Many books remain in the Internet Archive

Lending digitized books through the Internet Archive’s Online Library infringes copyright. A US federal district court made this landmark decision in March. Now, however, the court states that this is only secured for copyright-protected books from the suing publishers that are also commercially available in electronic form. If the publishers do not offer a title as an e-book, the Internet Archive may lend the self-made scans online until further notice.

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That emerges from the recent decision of the Federal District Court for southern New York. Overall, the four suing book publishers and the Internet Archive have agreed on a cease-and-desist order that regulates who the Internet Archive may (no longer) make available which books in electronic form. Despite months of negotiations, the parties to the dispute could not agree on whether the restrictions apply to all available books from the plaintiffs’ repertoire or only to works that they specifically market in electronic form. The responsible judge decided this question in favor of the Internet Archive.

Die Argumentation

Here’s how it works: First, the judge points out that cease and desist orders can only be issued for certain violations of rights that were also part of the court proceedings. The four publishers base their lawsuit on 127 books, to which they own or manage the rights, that the Internet Archive scanned and placed in the Online Library without permission. The plaintiffs are currently licensing all of these 127 books to libraries as e-books for a fee.

However, the Internet Archive does not use the publishers’ e-books, but acquires legal paper editions directly or through partners, scans them, provides the result with Digital Restriction Management (DRM) and lends it out. The book used for the scan is stored in an archive and is not loaned out, so that no additional workpieces are circulated; instead of a paper version, an electronic version is read. In this way, the Internet Archive believes it meets the requirements of fair use under US copyright law.

No, the court said in March, that’s not fair use. To do this, it examined and weighed the four factors of fair use: It depends on the purpose of use – commercial, non-commercial or educational – as well as on the type of work, the excerpts used compared to the work as a whole and finally the impact on the potential market or value of the work. On the fourth factor, the court found in March that there is a thriving market for e-book licenses for libraries. The offer of the Internet Archive forces the suing publishers out of this market, so there is no fair use.

Of course, this conclusion does not apply to books that publishers do not sell as e-books. However, it cannot be concluded from this that fair use is given. Relevant books were not part of the lawsuit, nor did the plaintiffs put forward arguments about them in the main proceedings. Accordingly, the cease and desist order can only relate to works that are actually commercially available as e-books.

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According to the cease-and-desist order, the corporate groups of the four suing publishers Hachette, HarperCollins, John Wiley & Sons and Bertelsmann can submit lists of works to the Internet Archive at any time that they are currently marketing commercially as e-books. The Internet Archive then has 14 days to remove these works from its online library. The ban applies to all editions, even if only one is available as an e-book.

Other exceptions

Excluded from the prohibition is the provision for the blind and the severely visually impaired, the provision with the express written permission of the rights holder, and uses that are permitted under the applicable copyright. In addition to fair use, this includes the operation of a library under very specific conditions. The Internet Archive may distribute works that are in the public domain indefinitely.

It should be noted that the injunction could fall: Because it is based on the original finding of copyright infringement. The Internet Archive is appealed against. Should that not be successful, the e-book question would be left to another procedure.

Unsurprisingly, the suing publishers believe that it makes no legal difference whether a copyrighted work is on the market electronically or only in print. This is an economic decision of the rights holder that third parties have to respect.

The Internet Archive can refer to the precedent Cambridge Univ. Press v. Patton refer: There, the publisher Cambridge University Press accused the management of a university of copyright infringement: They tolerated that students post excerpts from protected works in online forums of the university. Both the Federal District Court and the Court of Appeals ruled on most of the allegations against Cambridge Publishers. Fair use was given, partly because the publisher did not offer licenses for digital excerpts. And you can’t curtail a market that doesn’t exist.

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