By Craig Gipson

The technology industry’s relationship status with copyright law? It’s complicated. Large-scale book digitization projects and the proliferation of unauthorized book summaries are the latest issues to test the parameters of fair use. The outcome of a pending federal lawsuit will significantly impact these digitization projects in the future and how copyright and fair use apply in the digital publishing world. Meanwhile, the increase of unauthorized book summaries continues to be a blight on online book-selling sites. Unfortunately, the current state of the law affords publishers little in the way of recourse against internet retailers who profit from these sales.

The Internet Archive’s “Open Library” and Controlled Digital Lending (CDL)

What is Controlled Digital Lending?

The Internet Archive (“IA”) is the latest to test the boundaries of fair use. Its large-scale scanning and Controlled Digital Lending program finally drew enough publisher pushback in 2020 to file suit in federal court. The result of that case will significantly impact the publishing industry’s financial model and the future of content digitization projects. The IA is a nonprofit organization that has electronically stored about 4 million books and 400 billion pages of Internet content (the IA may be most well-known for its Wayback Machine webpage archive). In 2006, the IA launched its Open Library, and in 2011 it implemented Controlled Digital Lending. Essentially CDL consists of the IA acquiring a physical copy of a book and scanning it. It then loans out the scanned copy to Open Library patrons. IA justifies this practice under a creative legal theory of copyright’s first sale and fair use doctrines: that it only lends as many digital copies as it owns physical copies and only one patron at a time may check out the digital copy. This practice originally pioneered by the IA has since been adopted and promoted by other libraries, including those at prominent colleges and universities.

Why did publishers finally sue the IA?

If the IA implemented CDL in 2011, what finally pushed publishers to take legal action in 2020? The unsurprising answer is the IA’s response to the global pandemic. In late March of 2020, the IA launched the so-called “National Emergency Library.” The National Emergency Library discarded the IA’s usual CDL lending limits and instead allowed multiple simultaneous borrows of each scanned copy. Publishers and authors groups, already skeptical of the IA’s digital rights management tools to limit borrowing, were not amused. On June 1, 2020, Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House sued in federal court, asserting willful copyright infringement on the part of the IA. In response, the IA halted further lending from the National Emergency Library.

What will be the outcome and what will it mean for publishers?

The publishers are requesting (1) that the existing collection of scanned books in the Open Library be destroyed, (2) monetary damages for infringement which has already occurred, and (3) an injunction against the IA continuing to digitize and lend scanned copies of physical books. Key to the outcome will be two distinct fair use issues: (1) does the digitization of physical books by the IA infringe the copyright holder’s exclusive right of reproduction; and (2) does the lending of these scanned copies violate the copyright holder’s exclusive right of distribution?

Similar cases discussed in past ECPA updates [Court Upholds Digital Scanning of Books for Database (June 2014) and Publishers Settle With Google But a Legal Digital Library May Be Coming Soon (Oct. 2012)] addressed the issue of scanning books to create searchable databases of their text. Based on the courts’ findings in those cases, commentators believe it is unlikely that the IA’s digitization effort will be found infringing. However, the IA is lending whole reproductions of these scanned works, which may be viewed differently than the earlier Google Books and HaithiTrust cases. While previous large-scale scanning efforts survived as fair use because they only displayed snippets of text, the IA’s actions push beyond that to make the entire work available. The final factor in a fair use analysis is the impact of the use on the market for the original work. It is difficult to see how a use that replaces the entirety of the product at no cost, requires no original purchase by the IA (in the case of acquired used physical copies), and does not physically degrade can continue without significant harm to the publishing market. But, as in the Google Books case, there is the possibility a court will find the IA’s CDL system to be “transformative” enough to warrant fair use protection.

Whatever the outcome, the IA will be around to stay. In its initial filings, publishers asserted the IA infringed 127 copyrighted books, amounting to damages of approximately $19 million. Meanwhile, the IA has received donations and other revenue of more than $100 million in the past 10 years. This case represents an important battle over fair use, but the IA and tech giants can ensure the copyright war continues, win or lose.

A note for any ECPA members whose books are included in the Open Library: One of the IA’s defenses is that it has a system in place allowing copyright owners or licensees to request that their works be removed from public access. Reportedly, the IA honors these requests and will remove any ECPA publisher content if it is within copyright. This does not resolve the legal issue of the IA placing the burden on copyright holders to provide notice of infringing use rather than the IA requesting a license, but it serves as a short-term solution. A decision in the case is expected in 2022.

The Proliferation of Book Summaries

We’ve all seen them. Search for any best seller on Amazon and you are sure to find one or more “book summaries” or “study guides.” Some make clear they are only summaries not to be confused with the source. Others display a cover bearing more than a passing resemblance to the original book. These “summary publishers” sell tens of thousands of copies by buying up keywords to appear in search results above the books they summarize. In some cases, the summaries themselves become “best sellers.” But are these summaries protected by fair use or are online marketplaces and fly-by-night publishers making a quick buck at the expense of copyright holders?

While fair use is inherently fact-specific and some summaries may offer legitimate comment or criticism, the majority are peddling blatant infringement. The problem? The law in its current form does not provide publishers with many options.

The Digital Millenium Copyright Act (DMCA) protects online marketplaces, like Amazon’s third-party seller market, from liability absent knowledge or awareness of specific infringing activity and the right and ability to control that activity. This shields online marketplaces from contributory liability for the actions of its sellers unless the copyright holder specifically points out the infringing content to be removed.

And Amazon is not directly liable for the ongoing infringement either. A children’s toy company sued Amazon for allowing counterfeit products and various forms of infringement in a 2017 case. Included in its claims was copyright infringement for allowing counterfeiters to publish the company’s photographs of legitimate products on Amazon third-party seller pages. On the question of direct liability for sale of the infringing products, the courts found that Amazon was neither a “seller” or “distributor” under the law because it never owned title to the counterfeit goods being sold. And on contributory liability for publication of the photographs, Amazon lacked sufficient control over their publication to be liable for copyright infringement.

Amazon is aware of the problem, of course, but there is little incentive to change. In a 2019 securities filing, Amazon stated that it may not be able to prevent sellers “from selling unlawful, counterfeit, pirated, or stolen goods, selling goods in an unlawful or unethical manner, violating the proprietary rights of others, or otherwise violating our policies.”

For now, publishers can address copyright infringement by continuing to send DMCA take down notices. And for trademark infringement, another current option is the Amazon Brand Registry. If a mark is federally registered, the trademark owner may submit it to the Amazon Brand Registry and have infringing Amazon listings removed. Flagler Law Group is available to assist with either of those options until legislation better protects the rights of intellectual property holders.

This article is provided for informational purposes and is not intended as legal advice. This article was first published as an ECPA Legal Update.



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  • Milo & Gabby LLC v., Inc., Case No. 2016-1290 (Fed. Cir. May 23, 2017)
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