The Internet Archive has filed its answer to the lawsuit filed by four publishers (Hachette, HarperCollins, Wiley, and Penguin Random House) who allege copyright infringement of 127 works in IA’s Open Library, all of which have been removed from the Open Library.
The claims made by the publishers’ complaint, aside from references to direct quotations and basic factual claims about the functioning of the Open Library, are largely denied by IA and its counsel.
More detailed information related to the factual and legal claims associated with the case will emerge, as it is clear that IA is willing to go to the mat to defend the Open Library and, thus, the concept of controlled digital lending (CDL) in general. Most of the defenses (at least by count) relate to IA’s liability for any alleged infringement. However, there are two main defenses raised by IA that directly implicate the legality of Controlled Digital Lending broadly.
First is the first-sale doctrine. While clearly specified in law for physical goods, it is technically an open legal question whether or not the transfer of a physical copy to the digital realm, provided that no more than one readable copy is available, is copyright infringement. The most famous case dealing with the issue is Capitol Records v. ReDigi, where (on appeal) the Second Circuit ruled that because online copies were transferred digitally, the storage online required copying and thus interfered with reproduction rights–a case of metaphysics getting in the way of a more common-sense understanding of file transfers.
Second is fair use. As a nonprofit geared towards teachers and researchers, IA will likely clear the first element of fair use, though the variety of the works available under the Open Library makes any general claims about the nature of the works difficult to make. The use of the entirety of the books certainly weighs against fair use, and it’s an open question how a court will interpret the effect on the market for the works, considering the own-to-loan policy makes it, at least in that regard, exactly like a traditional library. (You can read a more thorough defense of CDL on fair use grounds here).
As I have stated previously, the novelty of IA’s case and the ambiguity of the law on the issue of first sale make it difficult to say with any confidence who will prevail. But any argument against the legality of the Open Library should also be treated as a criticism of current copyright law. The Open Library’s functioning is new, but the general model is that of any other library, and any reasonable copyright system would make room for this marriage of a physical collection of books with 21st century distribution methods.
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