At Hearing, Judge Appears Skeptical of Internet Archive’s Scanning and Lending Program

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From Publisher’s Weekly:

After nearly three years of legal wrangling, the Internet Archive’s scanning and lending program finally got its day in court on Monday, March 20. And if Judge John G. Koeltl’s questions are any indication, the Internet Archive is facing an uphill battle.

Over the course of a 90-minute hearing on the parties’ cross motions for summary judgment, Koeltl appeared skeptical that there was sufficient basis in law to support the Internet Archive’s scanning and lending of print library books under a legally untested protocol known as controlled digital lending, and unconvinced that the case is fundamentally about the future of library lending, as Internet Archive attorneys have argued.

“To say that this case is about the ability of a library to lend a book that it owns ignores whether the library has a right to copy wholesale the book,” Koeltl offered at one point during an extended exchange with IA attorney Joseph Gratz. “Does a library have the right to lend a book that it owns? Of course,” the judge conceded. But the question at the heart of this case, he added, is “whether a library has the right to make a digital copy of a book that it owns and then lend that digital copy, which it has made without a license and without permission” to patrons. “To formulate the issue in this case as simply ‘does the library have a right to lend a book that it owns’ belies the issue in the case,” Koeltl said.

In its motion for summary judgment, lawyers for the publishers argue that the Internet Archive is guilty of illegally digitizing tens of thousands of in-copyright print books and making them available to readers worldwide. “No case has held or even suggested that IA’s conduct is a lawful fair use,” the publishers argued.

In its motion for summary judgment, the Internet Archive counters that its efforts to scan legally acquired physical books and lend the scanned editions in lieu of the print under conditions that mimic physical lending is protected by fair use. “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 IA brief states. “Copyright law does not stand in the way of a library’s right to lend its books to its patrons, one at a time.”

Opening the day’s hearing, Elizabeth McNamara, arguing for the publishers, reiterated the plaintiff’s position that the Internet Archive’s scanning and lending program has no basis in law. “In short, CDL is built on a fallacy,” McNamara told the court. “No laws support this mass duplication and digitization of millions of books to distribute the entire world for the identical purpose that they were originally published, to be read. And for good reason—if this conduct was sanctioned, it would destroy the rights and controls of copyright holders.”

Disputing the defendant’s contention that there is no evidence of any net loss to the publishers from the IA’s program, McNamara argued that the existence of a “thriving” licensed access library e-book market, and potential lost license fees, was sufficient to show harm. “Because you don’t like the price or you don’t like the terms the answer to that is not that you steal,” McNamara told the court. “That is basically the IA’s answer, that we don’t like that market, we don’t want to pay it, it’s not in our interest to pay it and so we’re entitled to just duplicate your work without authorization and distribute it to the world. Well, that isn’t the way the law works and it’s not the way we work in markets.”

Arguing for the Internet Archive, Gratz maintained that the scanning and lending of library books under CDL rules is a lawful extension of the library’s traditional mission and that the IA’s creation of digital copies is “transformative” because the digital copy at issue is merely “incidental” to the loaning of a lawfully acquired corresponding physical book.

“Lending books by more efficient technological means does not offend the purposes of copyright,” Gratz argued. “Instead, it more effectively furthers those aims.”

Gratz also argued that there is “no evidence of harm such that taking away CDL from a library will harm those libraries and their patrons with no countervailing economic benefits to the publishers,” maintaining that the publishers did not lose “one dime” to the IA’s scanning and lending program.

But Koeltl peppered Gratz with questions throughout the hearing, appearing deeply skeptical that the Internet Archive’s fair use case was properly supported by case law, and unconvinced that the publishers’ market for library e-books was not impacted by libraries choosing to scan print books under CDL protocols.

“A library whether they hold a physical copy or not, has the ability to license an e-book from a publisher. Rather than pay that licensing fee to the publisher some libraries choose to make their own copy and to lend that copy. Why isn’t it self-evident that that deprives the publisher of the fees that the publisher could otherwise obtain from licensing an e-book to that library?” Koeltl asked.

“It is because with respect to the copies at issue in the CDL situation the question is not between OverDrive and nothing. The question is between physically lending a book to a particular patron, for which no payment would be due to a publisher, or digitally lending that book to the patron,” Gratz replied, adding that to find harm “there would need to be a reason to think that the publishers were worse off than the situation in which in which the fair use did not occur at all.” In fact, library e-book lending has grown throughout the existence of the IA’s scanning program, and actually surged during the height of the pandemic.

Koeltl sounded largely unmoved, however. And in her closing rebuttal, McNamara reiterated the publishers’ claim that “if CDL were given a green light” it would have a “a significant impact” not only on the library e-book market but on the consumer e-book market as well.

Link to the rest at Publisher’s Weekly

PG says that you can’t conclusively discern from questions a judge or group of judges ask the attorneys during a summary judgement or other hearing similar to that described in the OP that the court will rule one way or another.

Judges differ in the manner in which they deal with counsel during arguments concerning a motion or during the trial of a case. They can be playing devil’s advocate to probe each side’s reasoning and their charicization of various statlues or court cases they’re relying upon to support their contentions.

That said, based upon the OP’s description of what went on, PG doesn’t give the Internet Archive much of a chance of prevailing in this judge’s court.