Wherein The Copia Institute Asks The Second Circuit To Stand Up For Fair Use, The Internet Archive, And Why We Bother To Have Copyright Law At All

December was not just busy with Supreme Court briefs. The Copia Institute also joined many others, including copyright scholars and public interest organizations, in filing an amicus brief to support the Internet Archive’s appeal at the Second Circuit, seeking to overturn the troubling ruling holding its Open Library to be copyright infringement.

We’ve written about this case several times before, including about the original decision. At issue is how the Internet Archive has solved how to be a library in a way that geography doesn’t matter. Instead of lending out physical copies of books it lends out scanned copies instead, which means it doesn’t matter how far away a reader is from a book – they can still get to read it. Just like a physical library, the Internet Archive lends out books one-at-a-time, even in digital form, except during a brief period at the beginning of the pandemic when the exigence of the sudden lockdown, isolating people from the physical books they otherwise were entitled to access, appeared to justify allowing the loans to be unlimited in order to functionally restore the access that readers otherwise would have been able to have.

Publishers whose books were being scanned and lent, however, took issue with this lending and so sued, not just over the brief period of unlimited lending but all of the Internet Archive’s digital lending, arguing that only they were entitled to get digital copies of books into readers hands by virtue of their copyrights. The judge at the district court agreed and thus found the Internet Archive to be infringing, even though such a finding required such a truncated fair use analysis as to effectively obviate the doctrine and the public interests, as well as constitutional interests, it is designed to serve.

The Internet Archive’s own brief does a good job explaining how the district court got the fair use analysis wrong. Our amicus brief discussed the bigger picture of what it would mean if fair use couldn’t apply here. Including constitutionally; once again we reminded the courts that copyright law is subject to two important constitutional limitations.

First, that copyright law promote the progress of sciences and the useful arts. Congress is only constitutionally entitled to legislate in this area when the legislation it produces meets that goal. Legislation that does not meet this goal, or, worse, undermines it, is beyond the scope of its authority to pass and thus unconstitutional. But we weren’t arguing that copyright law was per se unconstitutional on this basis – after all, the statute does include the doctrine of fair use to help ensure that this legislative goal is met. Instead we argued that the courts had to give that part of the statute meaning or else they would be the ones rendering the statute unconstitutional if they interpreted it in a way that did not let it have that knowledge-enhancing effect.

Secondly, Congress is also limited in its legislative abilities by the First Amendment. Congress shall make no law that interferes, for instance, with freedom of expression. And, as we’ve noted a lot lately in our comments to the Copyright Office about AI, the freedom of expression inherently includes the right to read. So for copyright law to be constitutional it also can’t interfere with that right. Here the district court’s decision would interfere with it directly, effectively allowing copyright law to stand between books and readers entitled to read them by privileging copyright owners with a preclusive power the statute does not actually give them – or could give them, given these constitutional limitations constraining how Congress could write its statute.

Finally we argued that these concerns were not just academic. If the district court is upheld, fewer people will get to read books – even books that the Internet Archive lawfully owned, and that readers would otherwise be entitled to read (and often not otherwise get to read). Keeping people from reading seems like the last thing copyright law should be doing, especially not when the whole point of it is to make sure the public actually has things to read. Hopefully the Second Circuit will recognize how destructively counterproductive the district court’s decision was and reverse it.