The Jurisprudence Around IP is F$#@ed up and Sh$#

The internet archive bought books, scanned them, and lent them out.

This was a 1 to 1 thing.  The book was unavailable, so there was only one book out there.

The judge just made a summary judgement that the Internet Archive violated copyright.

The basis of the judge's ruling,  as Anna Russel would say, "I'm not making this up, you know," was that it the actions of the Internet Archive were an infringement on the publishers business model.

A federal judge rejected the Internet Archive's claim that it has a fair use right to lend out a digital copy of each printed book that it has purchased, raising the possibility of it facing huge damages for copyright infringement.

A week ago, Judge John Koeltl from the Southern District of New York heard oral arguments in Hachette v. Internet Archive, a lawsuit filed by four large publishers (Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House) that challenged the Internet Archive's Controlled Digital Lending (CDL) initiative.

The Internet Archive has been making digital copies of physical books that it acquires and lending those copies to online library patrons in a controlled manner – it circulates only as many digital books as it has actual copies. It is offering a digital proxy that stands in for the physical title.

Copying works protected by US copyright law may be excused if the copying falls under the fair use exemption.

The non-profit claims its book scanning and distribution qualifies as fair use because its digital lending scheme is "transformative" – which conveys a different meaning than the original – and non-commercial. These are among the factors considered when assessing whether the fair use defense can be applied.

It also asserts that the goals of the "first sale doctrine" – which allows the purchaser of a copyrighted work to sell, display or otherwise dispose of that particular copy without seeking permission from the copyright holder – support its controlled lending of digitized purchased books.

Judge Koeltl, however, found the Internet Archive's arguments wanting. In a decision [PDF] published on Friday, he wrote.

"The crux of IA’s first factor argument is that an organization has the right under fair use to make whatever copies of its print books are necessary to facilitate digital lending of that book, so long as only one patron at a time can borrow the book for each copy that has been bought and paid for," Koeltl opined.

"But there is no such right, which risks eviscerating the rights of authors and publishers to profit from the creation and dissemination of derivatives of their protected works. IA’s wholesale copying and unauthorized lending of digital copies of the Publishers’ print books does not transform the use of the books, and IA profits from exploiting the copyrighted material without paying the customary price."

You see what I am saying here?  The judge has manufactured a claim to an inalienable right to profit.

I would note that this is one step from telling people that they cannot share books, or resell them once they are done with them.

They actually tried to claim this, and lost in a 6-3 Supreme Court decision in Kirtsaeng v. John Wiley & Sons, Inc, where they attempted to prevent resales of books.

There is something very wrong with how the powers that be address a licensing issue that is supposed to be for the public interest, and any private profit is incidental to that public interest.