HathiTrust Files Brief to Support Libraries’ Fair Use Rights

HathiTrust has filed an amicus brief in Hachette Book Group et al vs Internet Archive, a US federal lawsuit addressing “controlled digital lending” (CDL).  In March, a district court in New York granted summary judgment to the publisher plaintiffs, ruling that Internet Archive’s CDL service and its National Emergency Library infringed the publishers’ copyright, and rejecting all claims that these services were fair use.  On Friday December 15, Internet Archive filed its brief in the Second Circuit Federal Court of Appeals seeking to overturn the district court ruling.

District Judge Koeltl’s ruling against Internet Archive threatens many legitimate and lawful ways that HathiTrust and other libraries provide digital access to the scholarly and cultural record, including the Emergency Temporary Access Service that supports ongoing teaching, learning, and research during temporary, emergency library closures. In our brief, we argue that the district court:

• overreached by failing to limit its analysis to the specific facts of the case, generalizing broadly to all digital lending services, not only Internet Archive’s;
• misread previous copyright cases involving HathiTrust and Google to improperly define “limits” to fair use, thereby condemning many legitimate practices in libraries;
• erroneously defined Internet Archive’s services as “commercial activity,” using reasoning that would apply to most standard activities of HathiTrust, other libraries, and nonprofit organizations in general;
• improperly defined the e-book marketplace so as to presume that digital lending inevitably harms publishers; and
• erroneously presumed that a publisher’s “performance rights” would override the rights of print-disabled users to access assistive technologies, such as screen readers.

There is no timeline for the resolution of this case, and litigation will likely continue deep into 2024. Our hope is that the Court will use Internet Archive’s appeal to correct all of these errors and protect the rights of libraries to lawfully lend their collections in ways that are tailored to the needs of their users. It is unfortunate that Hachette Book Group and the other plaintiffs in this case were moved to bring this lawsuit in a way that undermines fair use and common library practices.  We are hopeful that the Second Circuit will resolve this dispute in a manner that upholds fair use rights and supports all libraries and their users.

More coverage of this case, including links to briefs filed by Internet Archive and other amici, can be found on Library Journal InfoDocket.

HathiTrust Amicus Brief, December 22, 2023