The Internet Archive’s [Un]Controlled Digital Lending: The Not Good, The Bad & The Ugly
by Neil Turkewitz
I have been interested…indeed, fascinated, by fair use for as long as I have been a copyright lawyer, which is to say for a very long time (since 1986). Fair use plays a very important role in US copyright law, serving to foster new creations based on existing works, and to thereby expand core issues of freedom of expression at the heart of the First Amendment. I have written in the past about the importance that I and others in the copyright community attach to principled and properly bounded fair use, for example:
“Fair use is critical to the interests of society, but unlike most declared champions of fair use, not only do we care about creativity as an abstract concept, but we actually care about creators and preserving the creative process. We recognize that the creative process indeed is an evolutionary one, and that present creators draw upon past expression for inspiration. But standing on the shoulders of giants doesn’t require misappropriation, and anyone who tells you differently is selling something.”
As a champion of both copyright and fair use (and these are in fact symbiotic, not in opposition), I worry greatly about those that would expand fair use to an unrecognizable doctrine, undermining the very ability of creators to tell their stories. These efforts are sometimes rooted in overly expansive notions of transformativeness, and sometimes seek to create cover for consumptive uses by employing the sympathetic rhetoric surrounding the value of new expressive uses. The efforts by the Internet Archive to justify their mass unauthorized reproduction, distribution and display of the works of authors manifests each of these misguided and dangerous assertions about fair use, and I have thus been particularly interested in the ongoing litigation between the Internet Archive and certain book publishers (Hachette Book Group, Harper Collins Publishers, John Wiley & Sons, and Penguin/Random House) that are members of the Association of American Publishers (AAP). I have written frequently about this case, including a number of pieces the links to which may be found at the bottom of this piece.
These pieces draw attention not only to the Internet Archive’s contorted legal arguments seeking to justify their contrived theories under “Controlled Digital Lending,” but to their even more repugnant and deceptive characterizations which pretend that this is a battle between Big Publishers & a small non-profit seeking to expand access to the world’s information that somehow has no effect on authors themselves. More than anything, this offends every particle of my being.
Just yesterday, the parties filed cross motion for summary judgment. Here, in a series of tweets, I highlight some of the key observations made by Hachette at al:
I also draw your attention to a declaration filed by author, Sandra Cisneros, which serves as a powerful reminder that authors are not, as the Internet Archive would have you believe, neutral passive third party observers to a battle between publishers and the Internet Archive. Indeed, as she so compellingly sets out, the conduct of the Internet Archive, unless addressed, is likely to foreclose the ability of individual authors to tell their stories, thereby depriving the public of putative voices that would expand the diversity and richness of cultural materials.
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