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On your mark, get set, go.
First a bit of background …
The Internet Archive is a non-profit digital library that aims to provide free access to digital content for everyone. It was founded in 1996 by Brewster Kahle and is based in San Francisco, California. The organization's mission is to preserve digital content and make it available to future generations. It has a vast collection of websites, books, videos, images, software, and other digital content that can be accessed for free. The Internet Archive has been involved in various projects, including the Wayback Machine, which allows users to see historical versions of websites, and the Open Library, which provides free access to over 2.5 million digitized books. The organization also hosts the annual Decentralized Web Summit, which explores the future of the web and its potential to become more decentralized and user-controlled. The Internet Archive is funded through donations and grants and is a 501(c)(3) charitable organization.
This week, the Internet Archive lost a lawsuit brought against it by four book publishers, who claimed that the website did not have the right to scan books and lend them out like a library. The Internet Archive had launched its National Emergency Library program during the COVID-19 pandemic, allowing people to read from 1.4 million digitized books with no waitlist. However, Judge John G. Koeltl decided that the Internet Archive had done nothing more than create “derivative works” and would have needed authorization from the books’ copyright holders before lending them out. The judge dismissed all of the Internet Archive’s Fair Use arguments and wrote that any “alleged benefits” from the Internet Archive’s library “cannot outweigh the market harm to the publishers”. The Internet Archive says it will appeal.
Fair use is a legal doctrine in the United States that allows limited use of copyrighted material without seeking permission from the copyright owner. The doctrine recognizes that certain uses of copyrighted material are necessary for freedom of expression, education, research, and other public interests. It provides a legal defense for using copyrighted works for criticism, commentary, news reporting, teaching, scholarship, research, and other transformative purposes. Four factors are used to determine whether a particular use of a copyrighted work qualifies as fair use: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the potential market for the copyrighted work. Fair use is not a bright-line rule, and courts must evaluate each case on its own merits. In general, a use is more likely to be considered fair if it is non-commercial, transformative, and uses only a small amount of the copyrighted work.
Obviously, the wholesale reproduction of a copyrighted book, for instance, uses a large portion of the copyrighted work and is not transformative of the underlying work – that is, we aren’t talking about Pride and Prejudice and Zombies. A compelling argument can be made that the market harm to the publishers, even in a time like the height of the COVID-19 pandemic, was significant owing to the existence of things like ebooks and the shipment of books from online retailers.
The Internet Archive also tried to argue that the lending system may have contributed to book sales, the theory being that individuals that borrow a book might like to have a permanent copy. The judge in the case dismissed those theoretical arguments in favor of the publisher’s, let’s face it, theoretical arguments that their sales would have been higher had the Internet Archive not been lending out copies. As ever, it is mostly a test of whose speculative story sounds more plausible.
The Internet Archive is an important resource for preserving digital information and making it accessible to the public. It provides free access to a vast collection of digitized books, audio recordings, movies, and other materials that are in danger of being lost or forgotten. The website's Wayback Machine allows users to browse over 570 billion web pages saved over time. The Internet Archive also hosts a growing collection of software and video games, as well as a TV News Archive, which provides access to a searchable archive of over one million news broadcasts. In sum, the Internet Archive plays a vital role in preserving cultural heritage and providing universal access to knowledge.
As of now, none of that work in particular is at risk — but care must be taken on the part of the Internet Archive, and this is not legal advice but merely an observation, that their important collection is not put at risk by leaning on concepts as nebulous as fair use in future endeavors.
In other words, please Internet Archive if you’re listening, don’t get yourself shut down. To our other listeners, enjoy your maximum minimum competence on the Internet Archive case.