Four giant publishers claim that this service violates their copyrights and threatens their businesses. They are wrong: billions of dollars for the books in their print collections. CDL merely helps libraries better serve their patrons, but still lending just one book at a time. It is fundamentally the same as traditional library lending and poses no harm to phone number library authors or the publishing industry. In fact, the concrete evidence in this case shows that the Archive’s digital lending does not and will not harm the market for books.
The district court gave short shrift
To that evidence, one of many flaws in the ruling. Another was that it concluded that the Internet Archive’s free public library is actually a commercial activity. According to the court, a nonprofit has a commercial purpose if it derives virtually any benefit connected to its a work – including ordinary nonprofit activities like attracting send a message to the publishers new members, receiving recognition from its community, or having a donate button its website. That definition of “commercial” runs contrary to well-established precedent. What is worse, it would apply to almost every library and public interest organization in the country. It doesn’t make sense.
Our brief explains why
The court was wrong, and why controlled digital lending is a lawful fair use. But the core problem is this: The publishers are not seeking protection trust review from harm to their existing rights. They are seeking a new right: the right to take advantage of technological developments to control how libraries may lend the books they own.
They should not succeed Libraries have paid
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. We are confident the Second Circuit will see that, and rule according.