What
would
you
think
if
an
author
told
you
they
would
have
written
a
book,
but
they
wouldn’t
bother
because
it
would
be
available
to
be
borrowed
for
free
from
a
library?
You’d
probably
think
they
were
delusional.
Yet
that
argument
has
now
carried
the
day
in
putting
a
knife
into
the
back
of
the
extremely
useful
Open
Library
from
the
Internet
Archive.
The
Second
Circuit
has
upheld the
lower
court
ruling and
found
that
the
Internet
Archive’s
Open
Library
is
not
fair
use
and
therefore infringes
on
the
copyright
of
publishers (we
had filed
an
amicus
brief in
support
of
the
Archive
asking
them
to
remember
the
fundamental
purpose
of
copyright
law
and
the
First
Amendment,
which
the
Court
ignored).
Even
though
this
outcome
was
always
a
strong
possibility,
the
final
ruling
is
just
incredibly
damaging,
especially
in
that
it
suggests
that all
libraries are
bad
for
authors
and
cause
them
to
no
longer
want
to
write.
I
only
wish
I
were
joking.
Towards
the
end
of
the
ruling
(as
we’ll
get
to
below)
it
says
that
while
having
freely
lent
out
books
may
help
the
public
in
the
“short-term”
the
“long-term”
consequences
would
be
that
“there
would
be
little
motivation
to
produce
new
works.”
Which
is
just
all
kinds
of
disconnected
from
reality.
There
is
not
a
single
person
in
the
world
who
thinks
“well,
I
would
have
written
this
book,
except
that
it
would
be
available
for
people
to
borrow
for
free
from
a
library,
so
I
guess
I
won’t.”
Yet
a
three-judge
panel
on
the
Second
Circuit
concludes
exactly
that.
As
you’ll
recall,
the
Open
Library
is
no
different
than
a
regular
library.
It
obtains
books
legally
(either
through
purchase
or
donation)
and
then
lends
out
one-to-one
copies
of
those
books.
It’s
just
that
it
lends
out
digital
copies
of
them.
To
keep
it identical to
a
regular
library,
it
makes
sure
that
only
one
digital
copy
can
be
lent
out
for
every
physical
copy
it
holds.
Courts
have
already
determined
that
digitizing
physical
books
is
fair
use,
and
the
Open
Library
has
been tremendously
helpful to
all
sorts
of
people.
The
only
ones
truly
annoyed
by
this
are
the
publishers,
who
have
always
hated
libraries
and
have
long
seen
the
shift
to
digital
as
an
open
excuse
to
effectively
harm
libraries.
With
licensed
ebooks,
the
publishers
have
jacked
up
the
prices
so
that
(unlike
with
regular
books),
the
library
can’t
just
buy
a
single
copy
from
any
supplier
and
lend
it
out.
Rather,
publishers
have
made
it prohibitively
expensive to
get
ebook
licenses,
which
come
with ridiculous
restrictions on
how
frequently
books
can
be
lent
and
more.
It
was
clear
that
the
only
reason
all
the
big
publishers
sued
the
Internet
Archive
was
to
put
another
nail
in
the
coffin
of
libraries
and
push
to
keep
this
ebook
licensing
scheme
grift
going.
Now
the
courts
have
helped.
This
ruling
from
the
Second
Circuit
pushed
back
a little
bit on
one
of
the
most
overbroad
parts
of
the
district
court’s
ruling.
The
judge
there
seemed
to
have
decided
how
he
was
going
to
rule
long
before
oral
arguments
even
happened,
as
he
published
his
ruling
the
very
same
week
as
the
arguments,
and
he
twisted
things
to
favor
the
publishers
on
every
single
issue,
even
arguing
that
because
the
Internet
Archive
—
a
non-profit
—
asks
for
donations,
that
makes
everything
it
does
a
“commercial
activity.”
However,
this
ruling
is
still really problematic,
and
arguably
in
significant
conflict
with
other
circuits.
The
key
part
of
the
case
is
whether
or
not
the
Internet
Archive’s
scanning
and
lending
of
books
is
fair
use.
The
Second
Circuit
says
that
it
fails
the
fair
use
four
factors
test.
On
the
question
of
transformative
use,
the
Internet
Archive
argued
that
because
it
was
using
technology
to
make
lending
of
books
more
convenient
and
efficient,
it
was
clearly
transformative.
Unfortunately,
the
court
disagrees:
We
conclude
that
IA’s
use
of
the
Works
is
not
transformative.
IA
creates
digital
copies
of
the
Works
and
distributes
those
copies
to
its
users
in
full,
for
free.
Its
digital
copies
do
not
provide
criticism,
commentary,
or
information
about
the
originals.
Nor
do
they
“add[]
something
new,
with
a
further
purpose
or
different
character,
altering
the
[originals]
with
new
expression,
meaning
or
message.”
Campbell,
510
U.S.
at
579.
Instead,
IA’s
digital
books
serve
the
same
exact
purpose
as
the
originals:
making
authors’
works
available
to
read.
IA’s
Free
Digital
Library
is
meant
to―and
does―substitute
for
the
original
Works
The
panel
is
not
convinced
by
the
massive
change
in
making
physical
books
digitally
lendable:
True,
there
is
some
“change”
involved
in
the
conversion
of
print
books
to
digital
copies.
See
Infinity
Broadcast
Corp.
v.
Kirkwood,
150
F.3d
104,
108
n.2
(2d
Cir.
1998)
(“[A]
change
in
format
.
.
.
is
not
technically
a
transformation.”).
But
the
degree
of
change
does
not
“go
beyond
that
required
to
qualify
as
derivative.”
Warhol
II,
598
U.S.
at
529.
Unlike
transformative
works,
derivative
works
“ordinarily
are
those
that
re-present
the
protected
aspects
of
the
original
work,
i.e.,
its
expressive
content,
converted
into
an
altered
form.”
Google
Books,
804
F.3d
at
225.
To
be
transformative,
a
use
must
do
“something
more
than
repackage
or
republish
the
original
copyrighted
work.”
Authors
Guild,
Inc.
v.
HathiTrust,
755
F.3d
87,
96
(2d
Cir.
2014);
see
also
TVEyes,
883
F.3d
at
177
(“[A]
use
of
copyrighted
material
that
merely
repackages
or
republishes
the
original
is
unlikely
to
be
deemed
a
fair
use.”
(internal
quotation
marks
omitted)).
Changing
the
medium
of
a
work
is
a
derivative
use
rather
than
a
transformative
one.
But,
that’s
not
what
a
derivative
work
is?
A
derivative
work
is
not
scanning
a
book.
Scanning
a
book
is
making
a
copy.
A
derivative
work
is
something
like
making
a
movie
out
of
a
book.
So,
this
analysis
is
just
fundamentally
wrong
in
saying
that
this
is
a
derivative
work,
and
thus
the
rest
of
the
analysis
is
kinda
wonky
based
on
that
error.
Tragically,
the
Court
then
undermines
the
important
ruling
in
the
Betamax/VCR
case
that
found
“time
shifting”
(recording
stuff
off
your
TV)
to
be
fair
use,
even
as
it
absolutely
was
repackaging
the
same
content
for
the
same
purpose.
The
Court
says
that
doesn’t
matter
because
it
“predated
our
use
of
the
word
‘transformative’
as
a
term
of
art.”
But
that
doesn’t
wipe
out
the
case
as
a
binding
precedent,
even
though
the
Court
here
acts
as
though
it
does.
Sony
was
decided
long
before
modern
technology
made
it
possible
for
one
to
view
virtually
any
content
at
any
time.
Put
in
context,
the
“time-shifting”
permitted
by
the
defendant’s
tape
recorders
in
Sony
was
a
unique
efficiency
not
widely
available
at
the
time,
and
certainly
not
offered
by
the
plaintiff-television
producer.
So
because
content
is
more
widely
available,
this
kind
of
shifting
is
no
longer
fair
use?
How
does
that
make
any
sense
at
all?
Then
the
Court
says
(incorrectly
—
as
we’ll
explain
shortly)
that
there’s
really
nothing
new
or
different
about
what
the
Open
Library
does:
Here,
by
contrast,
IA’s
Free
Digital
Library
offers
few
efficiencies
beyond
those
already
offered
by
Publishers’
own
eBooks.
The
problem,
though,
is
that
this
isn’t
quite
true.
Getting licensed ebooks
out
from
libraries
is
a
difficult
and
cumbersome
practice
and
requires
each
library
to
have
a
vast
ebook
collection
that
none
can
possibly
afford.
As
this
lawsuit
went
down,
more
and
more
authors
came
out
of
the
woodwork,
explaining
how
research
they
had
done
for
their
books
was only
possible because
of
the
Open
Library
and
would
have
been
impossible
via
a
traditional
library
given
the
lending
restrictions
and
availability
restrictions.
The
amazing
writer
Annalee
Newitz
just
posted
about
how
their
recent
(amazing) book
on
psyops was only
possible by
using
the
Open
Library.
Researcher/writer
Molly
White
talks
about how
useful
the
Open
Library
has
been to
researchers
and
Wikipedia
editors,
enabling
them
to
access
content
that
simply
isn’t
readily
available
via
regular
libraries.
As
Jennie
Rose
Halperin
wrote
for
us
last
year,
people use
the
Open
Library
differently than
regular
libraries.
The
average
user
checks
out
a
book
for
just
30
minutes,
suggesting
that
it’s
not
actually
a
replacement
for
traditional
libraries,
but
a
useful
tool
for
people
who
are
doing
research,
as
Annalee
and
Molly
suggested
with
their
examples.
It’s
just
wrong
for
the
panel
of
judges
to
insist
it’s
a
one-to-one
replacement
for
libraries
in
terms
of
how
it’s
used
by
borrowers.
And
it’s
not
like
libraries
were
complaining
about
this
either.
Libraries
have
been
generally
supportive
of
the
Open
Library
(my
local
library
has
their
own
online
catalog
linked
to
the
Open
Library).
A
separate
way
in
which
the
Open
Library
is
unique
is
that
it
allows
writers
and
researchers
and,
well,
anyone,
to link
directly to
books,
which
is
incredibly
valuable.
But
the
Court
is
not
impressed,
even
though
it
barely
goes
into
any
details.
It
just
says:
“That
authors
of
online
articles
may
embed
links
to
IA’s
Free
Digital
Library
does
not
render
the
Library
a
significantly
transformative
secondary
use
of
the
Works.”
From
there,
the
Court
explores
whether
or
not
the
Internet
Archive’s
use
here
was
commercial.
The
lower
court
said
it
was
because,
ridiculously,
the
Internet
Archive
had
donation
links
on
library
pages.
Thankfully,
the
panel
here
sees
how
problematic
that
would
be
for
every
non-profit:
We
likewise
reject
the
proposition
that
IA’s
solicitation
of
donations
renders
its
use
of
the
Works
commercial.
IA
does
not
solicit
donations
specifically
in
connection
with
its
digital
book
lending
services―nearly
every
page
on
IA’s
website
contains
a
link
to
“Donate”
to
IA.
App’x
6091.
Thus,
as
with
its
partnership
with
BWB,
any
link
between
the
funds
IA
receives
from
donations
and
its
use
of
the
Works
is
too
attenuated
to
render
the
use
commercial.
Swatch,
756
F.3d
at
83.
To
hold
otherwise
would
greatly
restrain
the
ability
of
nonprofits
to
seek
donations
while
making
fair
use
of
copyrighted
works.
See
ASTM
I,
896
F.3d
at
449
(rejecting
the
argument
that
because
free
distribution
of
copyrighted
industry
standards
enhanced
a
nonprofit
organization’s
fundraising
appeal,
the
use
was
commercial).
It
also
disagrees
that
this
use
is
commercial
because
there’s
a
referral
link
for
people
to
go
and
buy
a
copy
of
the
book,
saying
that’s
“too
attenuated”:
Any
link
between
the
funds
IA
receives
from
its
partnership
with
BWB
and
its
use
of
the
Works
is
too
attenuated
for
us
to
characterize
the
use
as
commercial
on
that
basis
Even
so,
the
lack
of
commerciality
isn’t
enough
to
protect
the
project
on
the
first
factor
analysis,
and
it
goes
to
the
publishers.
On
the
second
factor,
the
nature
of
the
works,
the
Internet
Archive
tried
to
argue
that
because
it
was
sharing
knowledge
from
non-fiction
books,
this
one
should
be
neutral,
favoring
neither
party.
However,
the
Court
says
it
doesn’t
matter.
Books
are
books,
and
so
this
also
favors
the
publishers.
On
the
third
factor,
the
amount
shared,
many
people
think
this
should
obviously
go
to
the
publishers,
given
that
it’s
the
entire
books
that
are
lent.
But
in
the
Google
Books
and
HathiTrust
cases,
the
court
had
said
that
this
factor
just
means
if
the
use
is
copying more
than
is
necessary.
Thus
it’s
okay
to
copy
an
entire
work,
if
that’s
what
is
necessary
for
the
fair
use
in
question.
As
such,
it
seems
like
this
should
go
to
the
Open
Library.
But
the
Court
sees
it
differently:
IA’s
use
is
therefore
unlike
the
copying
that
took
place
in
HathiTrust
and
Google
Books.
In
those
cases,
the
defendants
scanned
copyrighted
books
to
create,
among
other
things,
searchable
databases
that
allowed
users
to
view
snippets
of
text
pertaining
to
their
search
terms,
or
to
learn
on
which
pages
and
with
what
frequency
their
search
terms
appeared
in
any
given
book.
HathiTrust,
755
F.3d
at
91;
Google
Books,
804
F.3d
at
208–10.
Though
the
defendants
copied
the
books
in
their
entirety,
doing
so
was
necessary
to
achieve
a
transformative,
secondary
purpose―the
searchable
databases
This
seems
fundamentally
incorrect.
The
panel
is
really
incorporating
its
analysis
on
the
first
factor
and
substituting
it
for
any
real
analysis
on
the
third.
Does
the
third
factor
regarding
the
amount
copied
differ
if
it
is
or
is
not
transformative?
Then
if
a
court
gets
the
first
factor
wrong,
then
by
definition
they
will
also
get
the
third
factor
wrong,
shifting
at
least
half
of
the
factors
on
that
one
point.
That
can’t
be
how
the
test
is
supposed
to
work.
Then,
finally,
we
have
the
“impact
on
the
market”
question.
This
and
the
first
factor
tend
to
be
the
only
ones
that
really
matter
in
these
analyses.
The
Archive
insisted
that
there
was
no
evidence
of
any
actual
harm
to
publishers
from
the
Open
Library.
But,
the
panel
here
says
“eh,
we’re
pretty
sure
it must harm
publishers.”
Here,
not
only
is
IA’s
Free
Digital
Library
likely
to
serve
as
a
substitute
for
the
originals,
the
undisputed
evidence
suggests
it
is
intended
to
achieve
that
exact
result.
IA
copies
the
Works
in
full
and
makes
those
copies
available
to
the
public
in
their
entirety.
It
does
not
do
this
to
achieve
a
transformative
secondary
purpose,
but
to
supplant
the
originals.
IA
itself
advertises
its
digital
books
as
a
free
alternative
to
Publishers’
print
and
eBooks.
See,
e.g.,
App’x
6099
(“[T]he
Open
Libraries
Project
ensures
[libraries]
will
not
have
to
buy
the
same
content
over
and
over,
simply
because
of
a
change
in
format.”
(internal
quotation
marks
omitted));
id.
at
6100
(marketing
the
Free
Digital
Library
as
a
way
for
libraries
to
“get
free
ebooks”);
id.
at
6099
(“You
Don’t
Have
to
Buy
it
Again!”).
IA
offers
effectively
the
same
product
as
Publishers―full
copies
of
the
Works―but
at
no
cost
to
consumers
or
libraries.
At
least
in
this
context,
it
is
difficult
to
compete
with
free.
But
again,
this
analysis
totally
misses
the
underlying
difference
in
scanned
books
vs.
actual
ebooks.
If
there’s
a
licensed
ebook
available,
the
experience
for
reading
is
way,
way
better
than
just
dealing
with
a
scan.
Publishers
absolutely
can
compete
with
free
in
this
example.
I
believe
that
the
Court
here
is
taking
the
Archive’s
comment
about
“will
not
have
to
buy”
completely
out
of
context.
Their
argument
is
that when
publishers change
formats this
offers
a
way
to
continue
lending
without
having
to repurchase content
that
they’ve
already
got.
It’s
the
equivalent
of
the
“time
shifting”
argument
that
was
fair
use
in
Sony,
where
all
they’re
doing
is
effectively
shifting
formats
of
content
they
already
have
legal
access
to,
which
should
be
fair
use.
Furthermore,
the
Internet
Archive
presented
even
stronger
evidence
of
the
lack
of
harm:
IA’s
expert,
Dr.
Rasmus
Jørgensen,
examined
OverDrive
checkouts
of
the
Works
before,
during,
and
after
the
National
Emergency
Library
(IA’s
COVID-era
program
pursuant
to
which
it
lifted
its
one-to-one
owned-to-loaned
ratio,
allowing
each
digital
book
to
be
checked
out
by
up
to
10,000
users
at
a
time
without
regard
to
the
corresponding
number
of
physical
books
in
storage
or
in
partner
libraries’
possession)
to
assess
potential
harm
to
Publishers’
eBook
licensing
market.
If
IA’s
lending
were
indeed
a
substitute
for
Publishers’
library
eBook
licenses,
he
theorized,
then
the
shutdown
of
the
NEL
and
reinstitution
of
IA’s
lending
controls
should
correspond
to
an
increase
in
demand
for
the
Works
on
OverDrive
(the
commercial
service
used
by
many
libraries
who
license
eBooks).
But
Dr.
Jørgensen
found
the
opposite:
OverDrive
checkouts
of
the
Works
decreased
following
the
shutdown
of
the
NEL
in
June
2020.
From
this,
IA
concludes
that
its
lending
“has
no
effect
on
demand
for
borrowing
on
OverDrive”
and,
therefore,
there
is
“no
reason
to
imagine,
much
less
assume,
that
digital
lending
affects
Publishers’
ebook
license
revenue
at
all.”
[….]
IA
also
submits
the
expert
report
of
Dr.
Imke
Reimers,
who
examined
the
effect
of
IA’s
lending
on
Amazon
sales
rankings
for
print
copies
of
the
Works.
Dr.
Reimers
analyzed
whether
Amazon
sales
rankings
changed
when
IA
(1)
first
added
the
Work
to
its
Free
Digital
Library,
(2)
launched
the
NEL,
or
(3)
removed
the
Work
from
its
Free
Digital
Library
in
response
to
this
lawsuit.
She
found
“no
statistically
significant
evidence”
that
either
inclusion
in
IA’s
library
or
increased
lending
through
the
NEL
harmed
print
sales
rankings
on
Amazon,
and
that
removal
of
the
Works
from
IA’s
Free
Digital
Library
actually
correlated
with
a
decrease
in
sales
rankings
of
the
Works
on
Amazon.
App’x
4934.
From
this
and
Dr.
Jørgensen’s
report,
IA
concludes
that
its
Free
Digital
Library
has
no
effect
on
Publishers’
markets
for
print
and
eBooks.
But
the
Court
dismisses
both
of
these,
saying
that
there
could
be
many
reasons
for
the
results
that
have
nothing
to
do
with
the
changes
to
the
Archive’s
lending
practices.
And
it
says
that
the
Amazon
comparison
is
meaningless
because
it
was
about
physical
books,
not
ebooks.
So
after
complaining
that
this
evidence
is
weak,
it
accepts
the
publishers’
argument
that
they
were
harmed even
though
they
presented
no
actual
evidence
to
support
that
claim.
So,
weak
evidence
is
no
good
for
the
Internet
Archive
and
the
publishers
get
away
with
presenting
no
evidence
at
all.
Although
they
do
not
provide
empirical
data
of
their
own,
Publishers
assert
that
they
(1)
have
suffered
market
harm
due
to
lost
eBook
licensing
fees
and
(2)
will
suffer
market
harm
in
the
future
if
IA’s
practices
were
to
become
widespread.
[…..]
We
are
likewise
convinced
that
“unrestricted
and
widespread
conduct
of
the
sort
engaged
in
by
[IA]
would
result
in
a
substantially
adverse
impact
on
the
potential
market
for
[the
Works
in
Suit].”
Campbell,
510
U.S.
at
590
(cleaned
up).
IA’s
Free
Digital
Library
serves
as
a
satisfactory
substitute
for
the
original
Works.
Were
we
to
approve
IA’s
use
of
the
Works,
there
would
be
little
reason
for
consumers
or
libraries
to
pay
Publishers
for
content
they
could
access
for
free
on
IA’s
website.
See
Warhol
I,
11
F.4th
at
50. Though
Publishers
have
not
provided
empirical
data
to
support
this
observation,
we
routinely
rely
on
such
logical
inferences
where
appropriate
in
assessing
the
fourth
fair
use
factor.
Again,
this
is
wrong.
I
always
borrow
official
ebooks
from
my
library
when
possible,
rather
than
the
Open
Library,
just
because
the
quality
is
so
much
better.
I
only
switch
over
to
the
Open
Library
when
such
ebooks
are
not
available
via
my
library.
But
the
false
assumption,
which
the
Second
Circuit
buys
into,
is
that
there
zero
difference
between
the
files.
And
that’s
just
fundamentally
wrong.
It
also
seems
in
pretty
direct
conflict
with
what
the
DC
Circuit said
last
year in
the
case
about
whether
or
not
Public
Resource
could
publish
standards
that
have
been
incorporated
into
law.
In
that
case,
on
this
fourth
factor,
they
found
that
just
because
identical
digital
copies
could
be
downloaded,
it
did
not
mean
that
the
market
was
negatively
impacted.
That
court
noted
that
the
publishers
in
that
case
could
not
show
any
evidence
of
harm
(indeed,
in
some
cases,
their
sales
had
increased).
But
this
panel
brushes
that
off,
saying
the
burden
of
proof
was
on
the
Archive
and
it
failed,
so
it
doesn’t
matter
that
the
publishers
offered
nothing:
To
the
extent
IA
faults
Publishers’
lack
of
empirical
data,
it
forgets
the
burden
of
proof.
Recall
the
broader
context:
Publishers
have
already
established
a
prima
facie
case
of
copyright
infringement.
The
only
issue
in
this
appeal
is
whether
IA’s
Free
Digital
Library
constitutes
a
fair
use
of
the
Works.
“Fair
use
is
an
affirmative
defense;
as
such,
the
ultimate
burden
of
proving
that
the
secondary
use
does
not
compete
in
the
relevant
market
is
appropriately
borne
by
the
party
asserting
the
defense:
the
secondary
user.”
Warhol
I,
11
F.4th
at
49.
While
the
rightsholder
may
bear
some
initial
burden
of
identifying
relevant
markets,
“we
have
never
held
that
the
rightsholder
bears
the
burden
of
showing
actual
market
harm.”
Id.
Publishers
need
not
present
empirical
data
of
their
own
in
connection
with
IA’s
asserted
affirmative
defense
Then
it
goes
on
to
say
that
the
nature
of
the
works
is
different
in
that
case,
but
the
“nature
of
the
works”
is
a
different
factor.
So,
again,
this
panel
seems
to
want
to
keep
mixing
up
the
factors.
The
final
part
of
the
ruling
really
is
a
tragic
insult
to
the
public.
The
Internet
Archive
made
a
final
argument
that
the
library
should
be
allowed
to
continue
given
its
substantial
public
benefit.
But
the
Court,
ridiculously,
claims
that
the
public
gets
a
greater
benefit
from
the
library
being
shut
down,
and
mocks
the
idea
that
expanding
access
to
the
public
is
all
that
important.
Indeed,
this
next
section
is
going
to
do
tremendous
damage
to
fights
for
an
open
internet
and
against
copyright
maximalism
and
how
it
locks
up
knowledge.
This
whole
section
is
basically
writing
the
public
benefit
out
of
copyright
law,
even
though
benefiting
the
public
is
the
entire
purpose
of
copyright
law.
And,
on
top
of
it,
it
argues
that
libraries
disincentivize
authors
by
offering
books
for
free.
Which
is
crazy.
We
conclude
that
both
Publishers and
the
public will
benefit
if
IA’s
use
is
denied.
To
be
sure,
expanding
access
to
knowledge
would,
in
a
general
sense,
benefit
the
public.
But
“[a]ny
copyright
infringer
may
claim
to
benefit
the
public
by
increasing
public
access
to
the
copyrighted
work.”
Harper
&
Row,
471
U.S.
at
569.
That
does
not
alone
render
the
infringement
lawful.
Indeed,
the
Copyright
Act
and
its
empowering
constitutional
authority
reflect
a
considered
judgment
that
“the
Progress
of
Science
and
useful
Arts”
is
best
promoted
by
laws
that
protect
authors’
original
works
and
permit
authors
to
set
the
terms
of
engagement,
at
least
for
a
limited
time.
See
Sony,
464
U.S.
at
429.
Doing
so
benefits
the
public
“by
providing
rewards
for
authorship.”
Google
Books,
804
F.3d
at
212.
This
monopolistic
power
is
a
feature,
not
a
bug,
of
the
Copyright
Act.
Within
the
framework
of
the
Copyright
Act,
IA’s
argument
regarding
the
public
interest
is
shortsighted. True,
libraries
and
consumers
may
reap
some
short-term
benefits
from
access
to
free
digital
books,
but
what
are
the
long-term
consequences?
If
authors
and
creators
knew
that
their
original
works
could
be
copied
and
disseminated
for
free,
there
would
be
little
motivation
to
produce
new
works.
And
a
dearth
of
creative
activity
would
undoubtedly
negatively
impact
the
public. It
is
this
reality
that
the
Copyright
Act
seeks
to
avoid.
That
bolded
line
in
that
paragraph
there
is
exactly
what
the
publishers
wanted:
a
knife
in
the
back
of
libraries.
It’s
literally
saying
“sure,
libraries
may
benefit
the
public,
but
if
they
continue
who
will
continue
to
write?”
This
is
completely
disconnected
from
reality.
What
authors
choose
not
to
write
because
their
book
is
available
to
be
freely
borrowed
from
a
library?
None.
And
yet,
this
is
now
precedent
in
the
Second
Circuit.
It’s
a
fantasyland
claim.
Again,
the
Open
Library
works
in
a
manner no
different
from
any
regular
library from
the
point
of
view
of
a
publisher
or
author.
A
book
is
purchased
or
donated
(the
publisher
and
the
author
therefore
get
their
money)
and
then
it
can
be
lent
out.
This
is
literally
no
different
than
how
an
author
is
compensated
from
a
regular
library.
If
the
bolded
comments
above
are
true
for
the
Open
Library,
they
must
also
be
true
for
a
regular
library.
Yet,
I
guarantee
that
not
a
single
author
chooses
not
to
write
because
their
books
are
available
in
a
library
to
be
lent
out
for
free.
This
is
the
part
that
really
destroys
me
in
this
ruling.
It
takes
a
completely
nonsensical
claim
and
insists
that
it’s
true.
It’s
fantasyland
thinking
and
it
effectively
puts
the
knife
in
the
back
of
libraries.
I
imagine
the
Archive
will
seek
cert
at
the
Supreme
Court,
but
who
knows
what
will
happen
there.
The
Supreme
Court
hasn’t
been
great
on
fair
use
lately.
The
better
answer
is
that
Congress
should
fix
this
and
make
it
clear
that
copyright
law
blesses
this
kind
of
open
digital
lending,
though
the
copyright
industries
would
throw
a
shitfit
if
anyone
even
dared
propose
such
a
bill.
This
ruling
is
a
huge
loss
for
public
access
to
knowledge
and
for
libraries.
Second
Circuit
Says
Libraries
Disincentivize
Authors
To
Write
Books
By
Lending
Them
For
Free
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