On one hand: the court opinion. On the other, a breaking news tweet from Publisher's Weekly with hundreds of tedious low effort takes ready to melt precious brain cells. Please read the opinion.
The whole point is that the judges are forming a judgement. It's, like, their opinion on the matter. The judges don't have to find out mathematically what the law says. They're making (case) law, by making an opinion, based on how they feel about it all, trying to be well-informed on the matter and its background, but really just putting down their feeling on it. Here's the most essential thing they wrote IMO:
From Page 2: """Is it “fair use” for a nonprofit organization to scan copyright-protected print books in their entirety, and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no."""
They justify it in a series of points. We can disagree with the points all we want, like whether or not it is transformative, or commercial, or all the other things. But at the end of the day, these judges said, nah, we're going to say that we don't think this is fair.
I mean, I can see their point. But this would have been a chance for them to see the point in what the IA was doing and to say, "oh, you know what, that is actually fair in our view". Only, they didn't, it looks like.
I guess the next step is to see if the Supreme Court is interested in weighing in on the topic.
- It's not like Campbell/Rose-Acuff (2 Live Crew v Roy Orbison, the "Pretty Woman" case) because IA's ebooks are not parodies of the original works. They _are_ the original works.
- It's not like Sony (the Betamax case in which whole-work copying was found fair because it enabled time-shifting), because there's no sufficiently different use that's not supported by the original copy. You read the book, you read the IA scanned copy.
Courts have judgment, but within parameters. The Copyright Act itself spells out four factors for evaluating whether a use is fair, and both courts found that it failed on every factor. The judge can't say, "well, but I still believe that the use should be fair anyway"; that would be an instant reversal and remand, with instructions amounting to "follow what the law says, dummy."
This was never really a close call based on prior cases. Transformative use has almost never been "exactly the same work used exactly the same way, but digital." Cases that have tried to make that argument have failed again and again. The "our enforcement ensures that only one person is using the copy at a time" has been tried before as well, and has consistently failed. Back in 2020, my heart sank when I saw IA's announcement that they were doing this, because I was certain that they would be sued for it, and that they would lose if they were. I can't stress enough how obvious these rulings have been if you expect the courts to do what they ordinarily do-- find similarly in similar cases.
The Supreme Court can discard all that precedent - they've certainly made a habit of that lately - and create new case law, along with an explanation of the way that they evaluate the factors to find that way. They may in fact do so; they've done that a couple of times in recent decades. However, they don't take many cases, and this case is so clearly in line with past cases that it's hard to see why they would take this one.
How does this same thing not apply to physical libraries then? Even if the scope were limited to books IA itself owns (which they still denied anyways), why should one-to-one digital lending be any different than physical in-person library book lending?
That said, some libraries do lend scans of materials and libraries copying materials on microfilm has been done for ages. Interlibrary loans are done frequently with copies. Hell, the Library of Congress does it.
There is nothing in the law that supports making a digital copy and and using technical safeguards to transfer it to exactly one person at a time - except licensing under the exclusive rights of the rightsholder.
Congress could write something into the law to support this kind of digital lending. However, Congress has been largely unable to accomplish anything interesting or innovative for a long time now, outside of a couple of flagship goals for one party or the other. Copyright law hasn't seen a substantial revision since the Act of '75, and ... a few ... things have happened since then. [DMCA added some new provisions for anti-circumvention and for safe harbor, but it didn't add new exemptions that most people care about, or modify the exclusive rights in any way.]
The entertainment/publishing industries have usually gotten what they want in past revisions, but by now the tech industry is pretty strongly on the opposite side. It would be interesting to see what kind of crazy-quilt changes got patched together in a significant revision.
> The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee—
> is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group; or
> engages in the systematic reproduction or distribution of single or multiple copies or phonorecords of material described in subsection (d): Provided, That nothing in this clause prevents a library or archives from participating in interlibrary arrangements that do not have, as their purpose or effect, that the library or archives receiving such copies or phonorecords for distribution does so in such aggregate quantities as to substitute for a subscription to or purchase of such work.
...
> (1) For purposes of this section, during the last 20 years of any term of copyright of a published work, a library or archives, including a nonprofit educational institution that functions as such, may reproduce, distribute, display, or perform in facsimile or digital form a copy or phonorecord of such work, or portions thereof, for purposes of preservation, scholarship, or research, if such library or archives has first determined, on the basis of a reasonable investigation, that none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2) apply.
> (2) No reproduction, distribution, display, or performance is authorized under this subsection if—
> (A) the work is subject to normal commercial exploitation;
> (B) a copy or phonorecord of the work can be obtained at a reasonable price; or
> (C) the copyright owner or its agent provides notice pursuant to regulations promulgated by the Register of Copyrights that either of the conditions set forth in subparagraphs (A) and (B) applies.
---
I believe that the covering of scanned / copied materials by a library are fairly well covered, and that Internet Achieve stepped clearly beyond that definition.
However you cannot do this with digital books because DRM doesn't allow that. So IA invented scanning physical books (that are legally bought and not circulated after this) as a countermeasure to allow lending digital books the same way as physical.
So do you side with the publishers who believe that "first-sale doctrine" should not apply to digital books?
Here is a quote from Article 109:
> Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title ... is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.
> (c) Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title ... is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.
This allows library to "dispose" the posession of the book as I understand. So why this should not be applied to digital copies?
I'm teetering at the top of a very tall fence on the _should_ question.
Publishers have always been opposed to digital first sale for a very simple reason: fear that their prices will go to zero. Used physical books prices are pennies on the dollar for new book prices, on the basis of the condition/deterioration issue. The quality/condition issue doesn't exist for digital works. If Amazon could offer "used" digital copies of publisher e-books, the customer would be choosing between identical binaries at 10-1 price ratios _at best_. I really don't see any other way that this goes. Sure, capitalism isn't for the weak, yadda yadda, new models, but how's it going to work. Amazon's Kindle Unlimited is an alternate model, but Amazon already has enormous control over publisher fortunes. "Should the current publishers exist" is a really interesting question. I'm just not sure I want to find out by handing all compensated book publishing to Amazon.
So why am I on the fence? Well, I have paid for 2000+ ebooks. I wouldn't mind being able to transfer them to my children without limitation, or to friends. If there were a resale mechanism no more disruptive than used paper books, I would probably have sold some of them already. It's not that I don't appreciate the value or convenience of resale, but that I consider the side effects.
The second question is, "Does current law support digital first sale?" First off, I am not a lawyer, and I'm not giving legal advice. However, the words of the law are pretty damn clear, to be honest, that it does not. You found section 109, which is correct, but you're relying on the colloquial meaning of the word "copy." You need to look up the words "copy" and "phonorecord" in the definitions, section 101, so that you can see that in this law both words refer to _material objects_ in which a work is fixed.
A paper book is a material object. You can sell the book. The buyer owns the physical book - the stack of paper and binding - and can read it.
A CD or DVD is a material object. You can sell the flashy mirror thing. The buyer owns the flashy mirror thing and can listen to the album or play the movie.
An ebook is just not a material object. In most cases, they are not with a single physical object, but licensed as downloads according to fairly restrictive terms. If you have a physical object with a duly licensed ebook on it, you're probably allowed to sell that physical object (unless it's a Cybertruck, I guess.) However, the license on that download is still going to be what controls. Your Kindle has Kindle software tied to your Amazon account that allows you to read the books you've bought, and I'm really pretty certain you can't sell your Amazon account and all your individual access rights.
Various entrepreneurs have tried to convince courts that some variant of "one-copy-at-a-time" digital first sale tech fits under 109, and courts look for the material object and note that it is not there.
So, anyway, the law is not written so that ingenious digital technology that ensures that a digital copy is only possessed by one person at time can fall under first sale. It's written so that physical objects that contain or embody copyright-protected works can be sold.
But there is also a definition of "fixed":
> A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
And definition of "display":
> To “display” a work means to show a copy of it ...
So does it mean that if we have, let's say, a hard drive with legally obtained ebook (a copy fixed in a tangible medium), and somehow transmit the book (show it to somebody) over the Internet from it without "fixing" (permanently storing) then it doesn't fall under "making a copy" or "display" and is perfectly legal? And maybe we can stream music the same way?
I am not a lawyer of course just curious.