Internet Archive Defender Alleges the Second Circuit Doesn’t Know the Law

In a recent article for The Scholarly Kitchen, Todd A. Carpenter, Executive Director of the National Information Standards Organization (NISO), defends Internet Archive (in Hachette et al. v. Internet Archive) and the practice called Controlled Digital Lending (CDL). Proving that one need not be Lindsey Graham to engage in propaganda disguised as legal opinion, Carpenter predictably elides any mention of authors’ interest in this case and makes erroneous statements of law, but he goes a step further by alleging bias or incompetence at the court. First, he mischaracterizes the case thus:

Publishers were not simply seeking to end a short-term program, but are seeking to limit the ability of libraries to engage in new approaches to existing rights that libraries have as established in copyright law.

To describe IA’s so-called National Emergency Library as a “short-term program” is too cute by half, but more important is the rest of that sentence. A “new approach to existing rights”? That’s like saying the Jan. 6 rioters took a “new approach” to the rights of assembly and speech. Except in IA’s case, the “existing rights” don’t exist in the first place.

Rights have contours and limits. And in copyright law, the various exceptions carved out for libraries and archives described in Section 108 do not allow the practice described as CDL, which is why IA put all its eggs in the basket of a fair use defense. But Carpenter, clearly unaware as to how weak that defense is, alleges that the district court judge rushed to a myopic decision . . .

Judge Koeltl has a reputation for prompt judgements in these types of cases and the turnaround of the judgement shouldn’t be read as reinforcing the obviousness of the decision, as some have done.

Judge John G. Koeltl was nominated to the federal bench by President Clinton in 1994, and I am skeptical that Carpenter possesses any data to show that the judge’s turnaround time “in these types of cases” is unusually brief. More to the point, Carpenter clearly does not know enough copyright law to understand exactly why the quick decision at summary judgment was indeed obvious—namely that IA’s fair use defenses have already been argued and decided in this same circuit.

There are so many quotes from precedent cases in Judge Koeltl’s decision that his opinion could almost be described as boilerplate—i.e., settled law. CDL is not allowed by statute, so IA cobbled together a tenuous fair use theory, every aspect of which has been presented by other parties (e.g., ReDigi, TVEyes), which Carpenter presumes to suggest the courts cannot understand.

The Internet Archive is aggressively seeking to extend this argument and will push it up the Appeals Court ladder as far as they can to advance their aims. I am not certain, however, that the court system, as it is currently populated, will be receptive to the IA’s arguments.

First, let me predict that the appellate court will very quickly affirm the district court ruling because this is an easy case, and I will further predict that the Supreme Court will not grant cert because this is an easy case. Yes, there are, and have been, judges with personal views on copyright (e.g., Ginsburg generally pro; Breyer generally anti), but the only kind of judge who would find that IA’s Open Library is fair use is one with little or no experience in copyright law whatsoever.

Unfortunately for IA and Friends, the Second Circuit has the longest, and perhaps the richest, body of copyright case law of any circuit in the country. To allege judicial bias is fine (and I have plenty of bones to pick with plenty of judges), but the implication that the arguments presented in Hachette are too nuanced or visionary for the “current population” of judges is a smokescreen obscuring Carpenter’s inaccurate framing of the merits . . .

The judge twisted himself into argumentative pretzels to define IA’s work as commercial.

So simple, and yet that one sentence clearly expresses a deep well of ignorance about the “commerciality” question under the first factor analysis of the fair use test. Simply put, even a non-profit entity can still obtain “benefits” or “advantages” through its exploitation of the in-copyright works at issue, and this tilts away from fair use. For example, if a church uses unlicensed artwork to make tee shirts promoting itself or a message it endorses—even if it gives the shirts away—this use may be held “commercial” under factor one in a fair use analysis. The case law is pellucid on the various ways in which IA obtains “benefits” or “advantages,” and if Carpenter et al. see “twisting,” it is only because they are unfamiliar with the well-trod paths Judge Koeltl is following.

This ruling inherently narrows fair use and relegates library use to either the aggressively controlled digital subscription ecosystem, a very narrowly constrained use case set, or the domain of the purely physical. 

See my post on Critiquing Copyright in the Digital Age under Use of Utter Bullshit. When a party argues for the expansion of a doctrine—and here IA advocates broadening fair use to encompass its CDL theory—the court’s rejection of that expansion does not result in narrowing the doctrine but instead affirms the status quo.

Again, the Second Circuit has been here and done this. By its own description, it “pushed fair use to its limits” in the Google Books and Hathi Trust cases, which Judge Koeltl cites thus: “If HathiTrust and Google Books demarcated the boundaries of fair use, this case shows what conduct remains squarely beyond fair use.” That’s not narrowing. That’s saying the court (specifically, this court) has drawn the lines the defendant is attempting to cross. The unstated implication: if you want to change the law so dramatically, Congress is your only venue.

The publishers did not pursue the many libraries that have used much more limited applications of CDL to serve their constituents.

Here, Carpenter implies that IA is being picked on by the publishers because IA’s conduct is exemplary of what libraries are already doing. And it’s easy to generalize and refer vaguely to “more limited applications of CDL,” but the thing about law (fair use analysis in particular) is that it is fact intensive.

Which library is engaged in which specific activity that is directly analogous to IA’s infringing conduct? Because if any library is producing and distributing its own ebooks to people all over the world, that library is violating the law. If the library is instead engaged in some other practice clearly exempted by statute, then Carpenter et al. should stop conflating IA’s Open Library with ordinary library practices. If it’s something else, then Carpenter et al. should stop generalizing and be specific.

The contract-law focused world of copyright for digital content is much more heavily weighted to the benefit of publishers and to the greatest extent possible, publishers would prefer it remain there. It is to every consumer’s detriment that we continue to move ever more in this direction in all manner of our digital lives.

I have no idea WTAF any of that means and am willing to bet Carpenter doesn’t either. Because it sounds like sloganeering—chumming the waters for emotional responses that override basic reason. And the basics are not very complicated. Authors write books. If you like books, then you need to recognize that authors’ copyright rights play an essential role in incentivizing them to write and distribute books—through retail, through libraries, on paper, in digital formats, audio, etc.

Carpenter is wrong to the point of lying when he implies that this case is more nuanced than the courts understand. It isn’t. It’s a straightforward matter if one knows the case law which, conveniently for IA, most people do not. What complicates this story in the court of public opinion, therefore, is that IA is a presumptive good guy who happens to be doing a bad thing. Its Open Library undermines core copyright rights for authors in ways that go beyond the world of libraries—and beyond books for that matter.

This case is not about libraries or “our digital lives” or the many platitudes attached to the subject of technology and cultural works. It’s about denying any party the opportunity to strip individuals of the basic right to protect and derive income from their creative work. And if Carpenter et al. see a difference between trying to silence authors through censorious laws or silencing authors by disenfranchising them in the market, then they’re just drinking a different color Kool-Aid.

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