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| title | tags | date | lastmod | draft | ||||
|---|---|---|---|---|---|---|---|---|
| Modern Copyright and the Internet Archive |
|
2024-09-05 | 2024-09-05 | true |
[!info] Bottom line up front: The Internet Archive has lost. Its model of "controlled digital lending" is not considered fair use by appellate courts. This is the worst outcome that the case could have had.
Full text available here, c/o The Verge.
The case Hachette v. Internet Archive came about largely because of the pandemic. Until then, IA had engaged in a very simple "one physical book, one digital lend" model to operate as a library. They called this "controlled digital lending," for hopefully self-explanatory reasons. But in 2020, IA expanded this program for a few months to a massive number of checkouts at a time, despite not having anywhere near the requisite number of copies. As soon as they were sued, they went back to controlled digital lending. Importantly, the most recent case answers the question of this one-to-one controlled digital lending, not the 2020 emergency expansion.
And now, the Court of Appeals for the Second Circuit has held their procedure to be plain old copyright infringement. I want to address the fair use arguments on both sides in a way that lets you compare how persuasive they each are. I don't think the legal precedent/context should be a factor in your analysis, but I'll provide it to hopefully let you know why certain topics are such contested issues in this case.