Does anyone know the facts about what the IA is actually disseminating? My impression from some sources sympathetic to IA is that it is only digitizing out of print books that have no commercial market value and that many of these are what we would call "orphan
works" where the actual owner of the copyright is not known or else very hard to determine or locate. But this suit being brought by such big publishers would suggest that the IA is including books still in print that are still selling through bookstores.
The strength of a fair use case, of course, is hugely affected by which set of facts pertain.
Let's assume the first set of facts is true. Then a fair-use defense might go as follows:
Factor 1: The use is not commercial because the IA receives no payment.
Factor 2: Some of the books included, say, fiction, would be highly "expressive" whereas others, scholarly works, would be more "factual."
Factor 3: The whole book is being copied.
Factor 4: If out of print, the books by definition have no commercial value, and thus there is no impact on the market or potential market.
Factors 1 and 4, which are usually weighed most heavily, favor the IA. Factor 3 weighs against IA. Factor 2 weighs partly for and partly against IA.
IA could also argue that the overarching goal of copyright is to promote the public good, which it perceives itself to be doing.
If the second set of facts pertain, it would seem IA would have a difficult time winning.
Sandy Thatcher
Date: Mon, 1 Jun 2020 19:59:11 +0000
People may be interested in knowing that this morning four publishers in the Association of American Publishers—Hachette
Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House—filed a copyright infringement lawsuit against the Internet Archive in the US District
Court for the Southern District of New York.
Alleging "a profound disrespect for the value chain of copyright," the lawsuit concerns both the Internet Archive’s National Emergency Library and its Open Library and assert that the Internet Archive "systematically produces bootleg digital copies of
books and distributes them to the global public on a massive scale."
https://publishers.org/news/publishers-file-suit-against-internet-archive-for-systematic-mass-scanning-and-distribution-of-literary-works/
Eventually we can expect a determination of whether the Internet Archive's unauthorized
uncontrolled digital access under the label of "controlled digital lending" is "fair" or unfair.
My best,
Janice T. Pilch
Member of the Library Faculty
Rutgers University Libraries