Fair Use, Infringement, and Free Speech Headline Publishing Legal Developments in 2023
By Craig Gipson
Along with spring’s predictable return of warmer weather, budding flowers and seasonal allergies, come several major legal developments for publishers. A long-awaited fair use decision provides clarity on e-book use by libraries; a proposed Florida law would weaken publishers’ libel protections; and, like the weeds returning annually despite your best efforts, another large-scale online infringer offers unauthorized PDFs of a host of Christian books.
Not so Fair Use? The Internet Archive’s Digitizing and Distributing Print Copies Infringes Copyright
Publishers won a decisive victory in a winding and lengthy debate over the Internet Archive’s system of lending electronic scans of print copies it acquired, a practice labeled by its proponents as controlled-digital lending (CDL). A federal court rejected the argument that CDL falls within the copyright exception of fair use.
The case originated during the early days of the COVID-19 pandemic when the Internet Archive utilized CDL to create the “National Emergency Library” (NEL). The Internet Archive’s CDL strategy consisted of acquiring a print copy, scanning that copy, and then lending the resulting scan as a digital copy. The NEL included approximately 1.4 million copyright-protected titles. Although the idea of CDL pre-dated the NEL by several years, this was the highest-profile and most aggressive effort at implementation.
Supporters of CDL argued that it enables libraries to “circulate a digitized title in place of a physical one in a controlled manner. Under this approach a library may only loan simultaneously the number of copies that it has legitimately acquired.”  At the launch of the NEL, condemnation came from all corners of the publishing industry: the Authors Guild and Association of American Publishers both issued public statements decrying the Internet Archive’s brazen disregard of copyright law. Four publishers filed suit and the court emphatically agreed with their position: “no case or legal principle supports [the Internet Archive’s argument]. Every authority points in the other direction.” 
The Internet Archive has vowed to appeal the ruling, but for now, publishers and copyright law appear to have defeated another novel fair use theory.
Florida Legislation Narrows Publishers’ Legal Protection Against Libel Claims
Two bills winding their way through the Florida legislature would weaken legal protections for publishers and media organizations against claims of libel and defamation. Among the bills’ concerns for publishers:
- The bills lower the standard for a successful libel or defamation claim in many cases from “actual malice”—publishing a statement with knowledge that it is false or reckless disregard as to its truth—to mere negligence. Publishing an author’s version of events which is affirmed by some witnesses and disputed by others may leave publishers open to expensive lawsuits. Passage of the bill would likely invite a legal challenge, which one legislator stated he hoped would cause the Supreme Court to overturn the legal precedent protecting publishers for more than 60 years. 
- That truth is a defense is a bedrock principle of libel and defamation law. However, the bill removes the possibility of proving the truth of a statement by citing “religious expression or beliefs.” Books that critique different theological views of “sexual orientation” and “gender identity” potentially become ripe for a libel claim, regardless of which viewpoint is being critiqued.
- The bill prevents publishers from recovering their costs and attorneys’ fees in defending against a libel claim in certain circumstances, even if they win the case.
- A statement attributed to an anonymous source is presumptively false. An author including the story of an alleged abuse victim who does not wish to be named would leave the publisher and author exposed to a claim that the statements are presumptively libelous unless proven otherwise (likely requiring the anonymous person to publicly testify).
- The bill’s implications extend even to publishers that might never face a defamation lawsuit. The mere increase in such claims—successful or not—will raise media insurance rates across the industry.
While the Florida bills are generally viewed as more favorable to conservative political positions, the precedent of a state weakening the free speech protections of publishers and media organizations poses larger problems. If this type of bill in Florida becomes law, nothing prevents politically liberal states from passing similar statutes favoring those states’ positions on issues like sexuality. If statements about a person’s religious beliefs are “libel per se” in Florida, statements about a person’s sexuality may later be “libel per se” in California or New York. Publishing in a national patchwork of revised libel laws would become a legal minefield.
For any ECPA member willing to participate in the political process, the bills’ passage remains in question and open to public comment. A coalition of religious publishers delivered a letter this month to the Florida governor’s office, requesting that the governor reconsider his support of the bills. Conservative media outlets and legal activists in Florida are also expressing doubts about the bills as they consider their own potential liability. 
The bills are pending in the respective Judiciary Committees of both the Florida House and Senate.
The Latest Mass Infringer of Christian Books: Ocean of PDF
The problem of online piracy unfortunately knows no season. The latest large-scale infringer of Christian books to rear its ugly head is oceanofpdf.com. Ocean of PDF contains a vast number of Christian titles and we recommend searching your own organization’s works to see if you may be affected by this latest infringer.
ECPA members banded together in the past to address large-scale infringement in the U.K., Australia, and the U.S. Even now, several ECPA members are working toward a settlement to stop infringement by MyBibleTeacher.net. If your organization has taken any action regarding oceanofpdf.com or would be interested in potentially joining a consortium against the site’s unauthorized activities, please contact Craig Gipson at Flagler Law Group on or before April 23. Once we gauge interest in addressing the problem, we can provide participants with a proposed course of action and cost estimate.
 David R. Hansen & Kyle K. Courtney, A White Paper on Controlled Digital Lending of Library Books (April 6, 2023), https://controlleddigitallending.org/whitepaper/
 Hachette Book Group, Inc. v. Internet Archive, No. 20-cv-4160 (S.D.N.Y. March 24, 2023).
 Mary Ellen Klas, Amid conservative media opposition, sponsor of Florida defamation bill seeks changes, Miami Herald, March 27, 2023
 Ken Bensinger, Right-Wing Media Splits From DeSantis on Press Protections, N.Y. Times, April 3, 2023 at A16.