Even Free Libraries Come With a Cost; The National Law Review, September 13, 2024

  Anisa Noorassa of McDermott Will & Emery , The National Law Review; Even Free Libraries Come With a Cost

"The US Court of Appeals for the Second Circuit affirmed a district court’s judgment of copyright infringement against an internet book archive, holding that its free-to-access library did not constitute fair use of the copyrighted books. Hachette Book Group Inc. v. Internet Archive, Case No. 23-1260 (2d Cir. Sept. 4, 2024) (Menashi, Robinson, Kahn, JJ.).

Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House (collectively, the publishers) brought suit against Internet Archive alleging that its “Free Digital Library,” which loans copies of the publishers’ books without charge, violated the publishers’ copyrights. Internet Archive argued that its use of the publishers’ copyrighted material fell under the fair use exception to the Copyright Act because Internet Archive acquired physical books and digitized them for borrowing (much like a traditional library) and maintained a 1:1 ratio of borrowed material to physical copies except for a brief period during the COVID-19 pandemic.

The district court reviewed the four statutory fair use factors set forth in § 107 of the Copyright Act:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
• The nature of the copyrighted work.
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
• The effect of the use upon the potential market for or value of the copyrighted work.

The district court found that Internet Archive’s use of the works was not covered by the fair use exception because its use was non-transformative, was commercial in nature due to its solicitation of donations, and was disruptive of the market for e-book licenses. Internet Archive appealed.

The Second Circuit affirmed, addressing each factor in turn."

Big new copyright fair use decision involving part owner of Miami Heat; Washington Post, 9/17/15

Eugene Volokh, Washington Post; Big new copyright fair use decision involving part owner of Miami Heat:

"I blogged about this case back when the magistrate judge issued his report, but today the U.S. Court of Appeals for the 11th Circuit affirmed (Katz v. Chevaldina), and concluded that defendant Irina Chevaldina’s use of the photo shown above is a fair use. The twist: The subject of the photo, Raanan Katz, bought the photo after it was published and used by Chevaldina, and then sued her in his capacity as now-owner of the photograph. No dice, said the court, concluding — in my view correctly — that Chevaldina’s use was a “fair use” and thus not an infringement..."