Courts

Book Bans Aren't The Only Legal Hurdle To Book Access These Days

It is hard enough to read as it is.

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Judge Holding DocumentsReading is fundamental. And so is copyright. No, really — check Article 1 Section 8 of the Constitution. As is usually the case, things get interesting when fundamental goods bash heads in the court room. This time, you’ll likely see a familiar name in the complaint if you’ve enrolled in college and been a little short on cash any time within the last 20 years or so.

A federal judge in Manhattan, New York City, has granted summary judgment to four publishers that sued the nonprofit Internet Archive for scanning copyrighted books and lending them out in digital form.

U.S. District Judge John G. Koeltl of the Southern District of New York ruled March 24 that the archive’s program constituted copyright infringement, and its digital lending “remains squarely beyond fair use.”

The website has been around for years and has done a great job of easing access to knowledge during trying times. One of those times was COVID.

Initially, the Internet Archive abided by a one-to-one loaned ratio. That meant that the number of permitted simultaneous checkouts of any book equaled the number of printed books owned by the archive. Participating libraries also offered one copy each of their digital books through the archive.

After the COVID-19 pandemic closed libraries, the Internet Archive launched a National Emergency Library that lifted the one-to-one loaned ratio. Instead, up to 10,000 readers could borrow any digital book on the archive website.

The expansion spurred the June 2020 lawsuit by the Hachette Book Group, HarperCollins Publishers, Penguin Random House and John Wiley & Sons Inc. After the suit was filed, the archive ended its National Emergency Library, according to coverage by Law360, Publishers Weekly and NPR.

It makes sense that book checkouts would increase during COVID. Finding the motivation to read is hard enough when you also have to worry about if the person before you washed their hands before they turned the pages — downloads do a great job of circumventing that nastiness. Not to mention, what else was there to do back then? You can only binge so much Netflix and make so much sourdough before the call of literary greats becomes too strong to ignore. One would think that the solution would be to go back to the pre-COVID lending routine, right? Even that may be too little too late.

“At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book,” Koeltl wrote. “But no case or legal principle supports that notion.”

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In the meantime, Internet Archive will still be able to scan and distribute public domain works of literature. Looking for something written by a person that still has a pulse? You might want to go to an actual bookstore for now.

Internet Archive’s scanning and lending of books violates copyrights, federal judge rules [ABA Journal]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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