Bad News for Libraries and Access to Knowledge

The Second Circuit ruled that the operation of the Open Library Internet Archive cannot be considered fair use and that it violates the copyright of publishers. Such a final decision is extremely harmful, especially because it suggests that all libraries are bad for authors, because they are supposed to discourage them from writing because books are free to borrow.

The Open Library acquires books legally (either by purchase or donation) and then lends out digital copies of those books in the same number as it has physical copies of the books. So it does not differ from the operation of normal libraries that support Open Library. The only ones who are really bothered by this kind of operation are the publishers, who find that this rental model interferes with their business model when they want to sell e-books on the basis of extremely high licenses.

Courts have previously decided that the digitization of physical books is i. fair use (link to the decision). A key part of this case, however, is whether or not the Internet Archive’s scanning and then lending books is fair use. The High Court ruled that doing so does not pass the test of fair use, as it is not transformative, because digital copies serve the same purpose as the originals, the lending of the entire book and the impact on the market are controversial. Although the Internet Archive insisted that there was no evidence of any actual harm to the publishers, the court wrote in the ruling that they were almost certain that it must somehow harm the publishers. But this analysis completely misses the fundamental difference between scanned books and actual e-books. If a licensed e-book is available, the reading experience is much better than a scanned book. Publishers are perfectly competitive in this case.

Many writers responded to the court’s decision, such as Annalee Newitz, who stated that the creation of her book would not have been possible without the use of Open Library. In addition, Jennie Rose Halperin noted that people use Open Library differently than regular libraries, with an average of only 30 minutes per book, suggesting that Open Library is a research format. In many cases, Open Library also provides access to content that is not available in regular libraries.

The decision thus became a precedent at the second-instance court. This ruling is a huge loss for public access to knowledge and for libraries. Communia also noted that such a decision is not only disappointing for the many users around the world who rely on the Open Library to get access to information, it is also based on a number of problematic assumptions.