On March 24, United States federal judge John G. Koeltl ruled that Internet Archive’s (IA’s) practice of controlled digital lending (CDL) infringed the copyright of four plaintiff publishers (Hachette Book Group, HarperCollins, John Wiley & Sons and Penguin Random House). In his opinion granting summary judgment to the four publishers, Judge Koeltl wrote: “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. But no case or legal principle supports that notion. Every authority points in the other direction.”
The four publishers filed the lawsuit on June 1, 2020 after IA’s National Emergency Library began circulating any number of copies of a given work. In his ruling, Judge Koeltl found that IA’s programme of digital lending is not transformative and that unauthorized reproduction of works is not protected by the first sale doctrine. He also rejected IA’s claims that publishers were not financially harmed by IA’s digital lending practices and stated that such practices would likely further deprive publishers of legitimate revenues if libraries opt out of paying for authorized e-book licences.
“The Canadian Authors Association is grateful that an important court is willing to protect authors, publishers, and the creative community,” said Travis Croken, National Co-Chair of the Canadian Authors Association. “The CDL decision is much-needed good news in the copyright world, when the Canadian federal government has failed to deliver on its promises to reform copyright and its March 28th budget failed to address those promises or devote much-needed funding to the literary creative community. The American case shows that fair dealing has its place in using creative works, and we must be vigilant to ensure the doctrine isn’t stretched to include dangerous interpretations. The American court resisted arguments made by IA in defence of their digital lending program, which if condoned, could undermine the global creative community and the revenues due for the use of creative works.”
Canadian Authors Association was founded in 1921 with a goal of lobbying for the protection of authors’ rights and fostering a sense of cultural and literary solidarity among Canadian writers. Today, CAA and its branches continue to work to provide aspiring, emerging and professional writers across all genres and writing professions the programs, services and resources they need to develop their skills, promote their work, and enhance their ability to earn a living as a writer.
For additional information:
Travis Croken, National Co-Chair