[Ohiodig] Internet Archive Court Cases

[Noah Stegman Rechtin]

Dear All,

In case anyone missed it, there are two recent bits of news involving
lawsuits against the Internet Archive. Although these cases may not affect
everyone directly, they are still important for the precedents they have
and may yet set.

*Hachette Book Group, Inc. v. Internet Archive*

First, the Internet Archive more or less lost its court case against the
"Big 4" publishers, *Hachette Book Group, Inc. v. Internet Archive*
<http://www.courtlistener.com/docket/17211300/hachette-book-group-inc-v-internet-archive>.
The case involved the IA's Controlled Digital Lending
<http://www.controlleddigitallending.org> policy, which argues that
in-copyright material can be made available for free online so long as: 1)
a library owns a copy, 2) it removes said physical copy from the shelf
whenever a digital copy is made available to maintain an "owned-to-loaned"
ratio, and 3) technical measures are in place to prevent reproduction.
Technically, the two parties came to a consent judgement in which the
Internet Archive agreed to remove all 127 books the publishers noted in
their exhibit for the lawsuit and any other books the publisher specifies.
(IA also agreed to pay undisclosed damages.)

*However*, there appears to be an important win for IA. In a follow up
decision, the judge ruled that they only have to remove books that the
publishers provide *in electronic format*. This is quite interesting as it
appears that it could be precedent setting. The publishers' lawsuit was at
least partially based on the fact that controlled digital lending brought
"market harm" by offering a free alternative to their paid works. Although
the ruling does not explicitly state that reproduction of such works is
legal, simply stating that "the case did not concern copyrighted works that
are not yet available in electronic form", by doing so the judge implicitly
recognized that there is a difference between the two formats. This would
build on the decision by a lower court in Authors Guild, Inc. v. HathiTrust
<http://en.wikipedia.org/wiki/Authors_Guild,_Inc._v._HathiTrust> that,
since it is a transformative use, digitization for print disabled users
does not constitute copyright infringement because such copies are not
commercially available.

More information is available in a statement
<http://blog.archive.org/2023/08/17/what-the-hachette-v-internet-archive-decision-means-for-our-library>
on IA's blog.

*UMG Recordings, Inc. v. Internet Archive*

Second, on the same day as the approval of the consent judgement in the
above case, a group of record companies filed a lawsuit, *UMG Recordings,
Inc. v. Internet Archive*
<http://www.courtlistener.com/docket/67687248/umg-recordings-inc-v-internet-archive>,
against the Internet Archive for their Great 78 Project
<http://great78.archive.org>. The project aims to digitize and make
available phonograph records 70 years old and older. At the moment the
collection holds over 439,000 recordings. The suit claims that there are
2,749 music tracks in the IA's collection that they hold copyrights to. *(If
I may insert an editorial comment, it is worth noting that over 118,000
master recordings were reportedly lost in a fire
<http://en.wikipedia.org/wiki/2008_Universal_Studios_fire> at Universal
Studios in 2008.)*

Although the project dates to at least 2017, it is affected by the CLASSICS
Act <http://en.wikipedia.org/wiki/CLASSICS_Act>, Title II of the Music
Modernization Act passed in 2018, which gave copyright to sound recordings
created before 1972. The previous patchwork of state laws was replaced by a
new federal law that gives protection to recordings from 1923 to 1972 –
with those created after 1957 not becoming public domain until 2067.

More information is available in a statement
<http://blog.archive.org/2023/08/14/internet-archive-responds-to-recording-industry-lawsuit-targeting-obsolete-media>
on IA's blog.

Sincerely,
Noah Stegman Rechtin
*Tri-State Warbird Museum <http://tri-statewarbirdmuseum.org/>*
*Collections Manager & Museum Attendant*

P.S. A disclaimer, our museum hosts its digitized content, including some
using CDL, in a collection
<http://www.archive.org/details/tristatewarbirdmuseum> on the Internet
Archive. Furthermore, I am not a lawyer.
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