Publishers Get One Step Closer To Killing Libraries

"Last Monday was the day of the oral arguments in the Big Publishers’ lawsuit against libraries in the form of the Internet Archive. As we noted mid-week, publishers won’t quit until libraries are dead. And they got one step closer to that goal on Friday, when Judge John Koetl wasted no time in rejecting every single one of the Internet Archive’s arguments.

The fact that the ruling came out on the Friday after the Monday oral arguments suggests pretty strongly that Judge Koeltl had his mind made up pretty quickly and was ready to kill a library with little delay. Of course, as we noted just last Wednesday, whoever lost at this stage was going to appeal, and the really important stuff was absolutely going to happen at the 2nd Circuit appeals court. It’s just that now the Internet Archives, and a bunch of important copyright concepts, are already starting to be knocked down a few levels.

I’ve heard from multiple people claiming that of course the Internet Archive was going to lose, because it was scanning books (!!) and lending them out and how could that be legal? But, the answer, as we explained multiple times, is that every piece of this copyright puzzle had already been deemed legal.

And the Internet Archive didn’t just jump into this without any thought. Two of the most well known legal scholars regarding copyright and libraries, David Hansen and Kyle Courtney, had written a white paper detailing exactly how and why the approach the Internet Archive took with Controlled Digital Lending easily fit within the existing contours and precedents of copyright law.

But, as we and others have discussed for ages, in the copyright world, there’s a long history of courts ignoring what the law actually says and just coming up with some way to say something is infringement if it feels wrong to them. And that’s what happened here...."