Are America's Courts Going After Digital Libraries?

A new article at Reason.com argues that U.S. courts "are coming for digital libraries."

In September, a federal appeals court dealt a major blow to the Internet Archive — one of the largest online repositories of free books, media, and software — in a copyright case with significant implications for publishers, libraries, and readers. The U.S. Court of Appeals for the 2nd Circuit upheld a lower court ruling that found the Internet Archive's huge, digitized lending library of copyrighted books was not covered by the "fair use" doctrine and infringed on the rights of publishers. Agreeing with the Archive's interpretation of fair use "would significantly narrow — if not entirely eviscerate — copyright owners' exclusive right to prepare derivative works," the 2nd Circuit ruled. "Were we to approve [Internet Archive's] use of the works, there would be little reason for consumers or libraries to pay publishers for content they could access for free." 

Others disagree, according to some links shared in a recent email from the Internet Archive. Public Knowledge CEO Chris Lewis argues the court's logic renders the fair use doctrine "almost unusuable". And that's just the beginning...

This decision harms libraries. It locks them into an e-book ecosystem designed to extract as much money as possible while harvesting (and reselling) reader data en masse. It leaves local communities' reading habits at the mercy of curatorial decisions made by four dominant publishing companies thousands of miles away. It steers Americans away from one of the few remaining bastions of privacy protection and funnels them into a surveillance ecosystem that, like Big Tech, becomes more dangerous with each passing data breach. 

But lawyer/librarian Kyle K. Courtney writes that the case "is specific only to the parties, and does not impact the other existing versions of controlled digital lending."
 Additionally, this decision is limited to the 2nd Circuit and is not binding anywhere else — in other words, it does not apply to the 47 states outside the 2nd Circuit's jurisdiction. In talking with colleagues in the U.S. this week and last, many are continuing their programs because they believe their digital loaning programs fall outside the scope of this ruling... Moreover, the court's opinion focuses on digital books that the court said "are commercially available for sale or license in any electronic text format." Therefore, there remains a significant number of materials in library collections that have not made the jump to digital, nor are likely to, meaning that there is no ebook market to harm — nor is one likely to emerge for certain works, such as those that are no longer commercially viable... 
This case represents just one instance in an ongoing conversation about library lending in the digital age, and the possibility of appeal to the U.S. Supreme Court means the final outcome is far from settled.
 

Some more quotes from links shared by Internet Archive:

"It was clear that the only reason all the big publishers sued the Internet Archive was to put another nail in the coffin of libraries and push to keep this ebook licensing scheme grift going. Now the courts have helped." — TechDirt 
"The case against the Internet Archive is not just a story about the ruination of an online library, but a grander narrative of our times: how money facilitates the transference of knowledge away from the public, back towards the few." — blogger Hannah Williams 
Thanks to Slashdot reader fjo3 for sharing the news.
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