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A New York federal court ruled that the Internet Archive’s Open Library project infringed copyright, rejecting its fair use defense despite limiting digital lending to a one-to-one ratio with physical copies. The judge determined that simply digitizing entire works is not transformative, as it serves as a direct market substitute for publishers rather than offering a new purpose like searchability. This decision clarifies that format conversion alone does not qualify for fair use, even when the service is non-commercial and aims to increase accessibility for those lacking library access. The ruling also addressed and dismissed arguments based on the first sale doctrine and home-use precedents. The court emphasized that the first sale doctrine allows resale of physical items but does not authorize the reproduction of digital copies without permission. Furthermore, the comparison to home video recording was rejected because the Open Library’s widespread distribution competed directly with publishers’ markets, whereas previous fair use cases involved private, non-commercial home consumption. Consequently, the potential for market harm was deemed significant, overriding the public interest arguments presented by the Archive. This case is critical for open_data advocates because it sets a restrictive precedent for digitizing and sharing copyrighted cultural heritage. It challenges the notion that non-profit entities can freely create large-scale digital archives of protected works under current intellectual property laws. For the open data and digital preservation communities, this highlights the legal fragility of mass digitization efforts, suggesting that similar initiatives may face significant barriers or require explicit permissions from rights holders to operate legally.

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Published on 2023-03-30

Open Data

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