FairUse

Shelving the dream of an online library? Hachette v. Internet Archive goes to the Second Circuit

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By: Zachary Blinkinsop

The opening chapter: COVID-19 and the National Emergency Library.

With the COVID-19 lockdowns of early 2020 slamming library doors shut, students and researchers found themselves struggling to access critical educational materials. Libraries, like many institutions, scrambled to adapt to the unprecedented challenges posed by the pandemic. Many librarians responded by espousing the use of copyrighted materials in remote education and research. They cited the doctrine of fair use which protects certain unlicensed uses of copyrighted materials without permission from the rightsholder. Fair use can protect the use of copyrighted materials in a range of contexts, including in research, education, news reporting, and criticism.

The main character in today’s story, an online library, may have pushed the limits of fair use too far. Even before the pandemic, the Internet Archive ran a digital library in compliance with the principles of controlled digital lending. Controlled digital lending (CDL) is a novel legal framework that would permit libraries to digitize their physical books and to lend those digital copies in a manner analogous to traditional lending practices. Under the CDL framework, a library needs to maintain an “owned to loaned” ratio, lending only as many digital copies of an item as it legally owns. The legal theory of CDL had been largely untested, and legal scholars held a wide range of opinions about whether courts would broadly hold CDL to comport with fair use.

In March of 2020, the Internet Archive launched its National Emergency Library to support “emergency remote teaching, research activities, independent scholarship, and intellectual stimulation” while schools and libraries were closed due to the pandemic. It temporarily allowed multiple users to check out the same digital copy simultaneously, disregarding the “owned to loaned” ratio prescribed by the CDL framework. This sparked controversy.

The plot thickens: a lawsuit filed.

Publishers had already been taking aim at controlled digital lending programs. The Authors Guild argued that “copyright law does not support the practice of even true, traditional libraries offering unauthorized scans of books to its users on an e-lending basis…” The National Emergency Library’s flouting of CDL’s permissive framework crossed an implicit redline for publishers. In June of 2020, Hachette, HarperCollins, Wiley, and Penguin Random House sued the Internet Archive in the Southern District of New York for “willful mass copyright infringement.” In their complaint, publishers eviscerated the underpinnings of CDL, “the rules of which”, they wrote, “have been concocted from wholecloth and continue to get worse.”

In its response, the Internet Archive insisted that the National Emergency Library qualified under fair use as it offered a noncommercial, educational service to the public during a national emergency. It further maintained that a digital library should be treated like a traditional library: “Contrary to the publishers’ accusations, the Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves. They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world.”

The future of controlled digital lending and the viability of online libraries was at stake in the case.

How does fair use apply to controlled digital lending?

Section 107 of the Copyright Act directs courts to consider four factors when evaluating a fair use defense to a claim of copyright infringement. A court must balance (1) the purpose of and character of the use, including whether it innovates in any way and whether it is for a commercial or non-profit purpose; (2) the nature of the copyrighted work; (3) the amount of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the market value of the copyrighted work. Courts adjudicate fair use claims on a case-by-case basis; an activity that qualifies as fair use in one set of circumstances may not qualify under a different set of facts.

Capitol Records v. ReDigi, a case decided in 2013, foreshadowed the outcome of Hachette v. Internet Archive. ReDigi was a service that facilitated the resale of digital files originally purchased from the iTunes store. In that case, the court held that ReDigi’s resale of digital music files fell “well outside the fair use defense.” Running through the four-step test, the court found that (1) uploading and distributing digital files for sale does not add anything new to a copyrighted work; (2) copyright protections are intended to protect musical recordings; (3) transmitting a work in its entirety usually negates a fair use defense; and (4) ReDigi’s sales obviously undercut Capitol Records’ profits.

Although ReDigi’s marketplace was commercial in nature, an obvious difference from the nonprofit intent of the National Emergency Library, the other facts broadly aligned. The National Emergency Library arguably did not innovate the use of copyrighted books. Copyright protections clearly protect rightsholders’ interests in published books. The books offered through the National Emergency Library were transmitted in whole, and this arguably undercut the publishers’ profits from ebook sales.

An open-and-shut case? The Second Circuit enters the plot.

Judge John G. Koeltl held that the Internet Archive’s National Emergency Library failed all four factors of the fair use test. He wrote in his opinion that “IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book. But no case or legal principle supports that notion. Every authority points the other direction.” The opinion was a resounding victory for publishers.

The Internet Archive promised to continue fighting. The founder of the Internet Archive, Brewster Kahle, framed the case as a battle for free access to information within a wider war for global democracy: “Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society—owning, preserving, and lending books.”

On December 15, 2023, the Internet Archive filed its opening brief to the U.S. Court of Appeals for the Second Circuit. In the brief, the Internet Archive asks the Court to reverse the lower court’s decision and to hold that its controlled digital lending is fair use. The Internet Archive is arguing that the lower court erred in applying the four-factor test because the court “failed to grasp the key feature of controlled digital lending: the digital copy is available only to the one person entitled to borrow it at a time, just like lending a print book.” The Internet Archive says that the court’s misunderstanding particularly tainted its analysis of the first and fourth factors. For example, it argues that the court’s analysis of the fourth factor did not take into account expert testimony indicating that “lending is not a substitute for Publishers’ ebooks and has no effect on Publishers’ markets.”

The Second Circuit’s decision in this case will shape the future of controlled digital lending and the ongoing debate surrounding fair use and access to information in the digital era. Librarians, publishers, and legal scholars will be watching closely, waiting for the next major development in the application of free use to a rapidly evolving digital world.

Stay tuned for the next chapter in this story.

The State of Sampling: The Landscape of Sampling and Copyright Law in 2023

/ Washington Journal of Law, Technology & Arts / 1 Comment

By: Cooper Cuene

De La Soul’s 1989 album 3 Feet High and Rising is a classic and hugely influential record that Rolling Stone recently described as “a landmark of the genre” when ranking it as the 33rd best rap album of all time. Until recently, however, a listener eager to give the album a listen would have quickly realized that it is difficult to find: Despite its classic status, until just last month, 3 Feet High and Rising was not available on any streaming platforms. This is because the album is densely packed with chopped up samples of other artists’ music that until recently either had not been or could not be cleared. Alas, the mere fact that sampling has been around since the dawn of rap music has not meant that the legal structure of the practice has improved for artists today. In a recent high-profile case, the late rapper Juice WRLD was forced to pay Sting 85% of the royalties for his song Lucid Dreams which sampled Sting’s Shape of My Heart. While it remains difficult (and expensive) for artists to use samples of existing music in new tracks, the state of sampling in 2023 is ripe for change. Multiple academics are eager to propose new regimes to regulate the sampling of other artist’s tracks, especially in a day and age where digital tools make the use of samples easier than ever.

The origins of the severe restrictions on the ability of producers to sample music can be traced back to Grand Upright Music v. Warner Bros, Inc., a 1991 decision by the Southern District of New York. This case set early precedent in its full-throated prohibition on sampling in music. The decision invoked the ten commandments in reminding the defendants “thou shalt not steal,” without contemplating that sampling could be a legitimate use of a copyrighted work. At issue was a sample on Biz Markie’s album I Need a Haircut, and the ruling immediately stunted the use of sampling throughout the music industry. As Pitchfork noted in their retrospective review of Public Enemy’s Fear of a Black Planet, following Grand Upright Music it became “forbiddingly difficult and expensive to incorporate even a handful of samples” into a new work. Unfortunately, later developments in the case law would be no kinder to the practice of sampling.

Later significant decisions concerning sampling were handed down in the 2000s and continued to be  unambiguous in their prohibition of the practice. Bridgeport Music, Inc. v. Dimension Films is a prime example of the way that courts have approached sampling over the last few decades. In that 2005 case, the defendant released a movie with a soundtrack containing a track that sampled a short portion of a song called Get Off Your Ass and Jam. The film contained only a four second section of a guitar riff from the original song that had been slowed and stretched to extend to a sixteen-bar loop. Despite the defendant’s argument that the small amount of the original track used was de minimis, the Sixth Circuit still found for the plaintiffs. Their opinion was resounding, commanding artists to simply “[g]et a license or do not sample.” Despite the inflexibility of this standard, it remains valid law today.

Bridgeport’s standard and its rigidity has unsurprisingly sparked calls for reform from musicians and academics alike. A common thread among calls for reform is that a reformed legal regime governing licensing should aspire to more actively promote the Constitution’s grant of power to Congress to “promote the progress of . . . useful arts.” One leading alternative regime is the idea that works that make use of samples include a clear attribution to the original song in their title, much like songs do with featured artists already. John Ehrett is a prominent supporter of this alternative, arguing in his 2011 paper “Fair Use and an Attribution-Oriented Approach to Music Sampling” that the music industry should take up citation standards for samples akin to the specialized citation styles present in other industries. Under Ehrett’s proposal, songs that include samples would include an indication in their titles that they do so, such as “Song A (samp. Song B).” This would ensure that the original work gets the necessary recognition while also providing a smoother sampling process for the artist behind the new work. Others have proposed a sliding licensing scale that requires artists to pay less for a license the more they transform the work. In either case, it has become clear to many artists and academics that the current regulatory regime governing samples is untenable and should be reformed to better enable new artists to create with existing works.