By Summer Allen
An unlikely character may soon join the ranks of Blackbeard, Captain Hook, and the Dread Pirate Roberts. In a current lawsuit, librarians are being accused of “digital piracy,” but their treasure chests are filled with books instead of Spanish Doubloons.
A group of publishers, including Hachette and Penguin Random House, brought this lawsuit against the Internet Archive, a nonprofit with an online library, alleging copyright infringement. They brought their case in the Southern District of New York in June of 2020. The publishers allege that the Internet Archive is illegally scanning books and uploading them to their servers, where they distribute them for free to the public. The publishers call this “willful digital piracy on an industrial scale.” The Internet Archive, which calls itself “a Library of Alexandria for the twenty-first century,” denies these allegations.
Although both provide online copies of books, the Internet Archive uses a different process than traditional public libraries lending e-books. Traditional libraries have licensing agreements with publishers to distribute e-books; the Internet Archive has no such agreement but instead scans previously acquired physical copies and distributes them online.
The Internet Archive justifies this practice under a theory known as Controlled Digital Lending (“CDL”). It argues that CDL is a digital process that mirrors traditional library lending, which allows them to distribute digital copies without offending copyright law. Under CDL, libraries digitize copies of physical books that they own and then loan them out to patrons for a set amount of time. Crucial to CDL is maintaining the “owned to loaned” ratio. Circulation must only equal the total numbers of copies owned. For example, if the library owns two physical copies, they can circulate both physical copies, one digital and one physical, or two digital copies at a single time. Proponents of CDL argue that it operates under the same legal principles that allow libraries everywhere to lend books: the first sale and fair use doctrines.
Section 109 of the Copyright Act codifies the first sale doctrine, where those who legally acquire copyrighted works also receive the right to sell, display, or otherwise dispose of their copy (provided it does not infringe the interests of the copyright owner). Other businesses that use the first sale doctrine include eBay, used record stores, and even college bookstores buying and selling used textbooks.
The fair use doctrine allows uses of copyrighted works that implicate any or all of the original holder’s rights. Ultimately, the fair use test asks “whether the copyright law’s goal of promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it.” Courts look at four factors when applying the fair use doctrine:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Those in favor of CDL look closely at the first and fourth factors. They argue that CDL is a noncommercial, temporary way to further research and learning purposes. They also argue that CDL has no different effect on the market than other accepted uses, such as traditional library lending. The Internet Archive stands by their use of CDL, arguing that it serves the public interest “in preservation, access and research.”
Opponents of CDL, however, call it an “invented theory” that directly violates the Copyright Act.  They compare it to a fair use argument already rejected by the Second Circuit in Capitol Records v. ReDigi. In this case, the court found that an internet platform designed for the lawful resale of digital music files violated the record companies’ rights under the Copyright Act. The court emphasized the lack of difference between physical and digital copies, finding that the only real difference between the two was the digital copies’ lower price. This lower price directly affects the market for the products and harms the original copyright holders, thus weighing “powerfully” against fair use. Some argue that this same reasoning applies to CDL: it allows libraries to provide digital copies for free, thus negatively impacting the market for such publications.
A group of copyright professors and scholars have sided with the publishers, claiming that the Internet Archive’s conduct goes far beyond traditional library exceptions to the Copyright Act, and that CDL is a “fig leaf” that attempts to hide its illegal distribution. On the other hand, an amicus brief jointly filed by a librarian and copyright lawyer sides with the Internet Archive, arguing that CDL represents the next logical step for libraries operating in the digital age.
Each side filed a motion for summary judgment in July of 2022. Will CDL prove to be a librarian’s buried treasure? Or will it be tossed into Davy Jones’ locker?
 Complaint at 2, Hachette Book Grp. v. Internet Archive, No. 20CV04160, 2022 U.S. Dist. LEXIS 120780 (3d Cir. June 1, 2020).
 Id. at 1.
 Id. at 2.
 Id. at 2.
 Answer at 1, 3, Hachette Book Grp. V. Internet Archive, No. 20CV04160, 2022 U.S. Dist. LEXIS 120780 (3d Cir. July 28, 2020).
 Elizabeth A. Harris, Publishers Sue Internet Archive Over Free E-Books, N.Y. Times (June 1, 2020), https://www.nytimes.com/2020/06/01/books/internet-archive-emergency-library-coronavirus.html.
 Answer at 2, Hachette Book Grp. V. Internet Archive, No. 20CV04160, 2022 U.S. Dist. LEXIS 120780 (3d Cir. July 28, 2020).
 Hachette v. Internet Archive, Electronic Frontier Found. (last visited Oct. 3, 2022), https://www.eff.org/cases/hachette-v-internet-archive.
 David R. Hansen & Kyle K. Courtney, A White Paper on Controlled Digital Lending of Library Books, Controlled Digit. Lending (2018), https://controlleddigitallending.org/whitepaper#_ftn1.
 Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 608 (2d Cir. 2006).
 17 U.S.C. § 107.
 Hansen, supra note 12.
 Answer at 3, Hachette Book Grp. V. Internet Archive, No. 20CV04160, 2022 U.S. Dist. LEXIS 120780 (3d Cir. July 28, 2020).
 Complaint at 4–5, Hachette Book Grp. v. Internet Archive, No. 20CV04160, 2022 U.S. Dist. LEXIS 120780 (3d Cir. June 1, 2020).
 Controlled Digital Lending is Neither Controlled Nor Legal, The Authors Guild (Jan. 8, 2019), https://www.authorsguild.org/industry-advocacy/controlled-digital-lending-is-neither-controlled-nor-legal/; Capitol Records, LLC v. ReDigi Inc., 910 F.3d 649 (2d Cir. 2018).
 Capitol Records, 910 F.3d at 652.
 Id. at 662–63.
 Id. at 663.
 Controlled Digital Lending, supra note 25.
 Brief of Amici Curiae Professors and Scholars of Copyright Law in Support of Plaintiffs and in Opposition to Internet Archive at 9–11, Hachette Book Grp. V. Internet Archive, No. 20CV04160, 2022 U.S. Dist. LEXIS 120780 (Aug. 5, 2022).
 Amicus Brief of Kenneth D. Crews and Kevin L. Smith in Support of Defendant Internet Archive’s Motion for Summary Judgment and in Opposition to Plaintiffs’ Cross-Motion for Summary Judgment at 1–2, 9, Hachette Book Grp. V. Internet Archive, No. 20CV04160, 2022 U.S. Dist. LEXIS 120780 (July 20, 2022).
 Notice of Motion of Plaintiffs Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc. and Penguin Random House LLC for Summary Judgment at 1, Hachette Book Grp. V. Internet Archive, No. 20CV04160, 2022 U.S. Dist. LEXIS 120780 (July 7, 2022); Defendant Internet Archive’s Notice of Motion for Summary Judgment at 1, Hachette Book Grp. V. Internet Archive, No. 20CV04160, 2022 U.S. Dist. LEXIS 120780 (July 7, 2022).
I removed the comma here consistent with CMS 6.23. The verbs, “has” and “scans,” share the same subject, “Internet Archives.”
I’m removing the comma here consistent with CMS 6.23. The verbs share the same subject. See specifically the sixth example in the rule for clarification.