Who needs Google when you have a library card—your all-access pass to a world of knowledge, mystery, and free Wi-Fi? Unfortunately, libraries are becoming more irrelevant each day with their outdated practices and loss of the public’s interest in physical books. Nowadays, everyone carries a Kindle e-reader or reads e-books on their phones. This has become a disadvantage to libraries because, to lend e-books to their patrons, they must jump through hoops to do so. Libraries must pay for a license from the publishers, which is more expensive than the purchase of the actual e-book and expires after a certain amount of use or time. Physical books are tangible; therefore, a library may acquire them through a one-time purchase or donation. Meanwhile, e-books are intangible pixels on a screen that cannot be loaned like a book.
At the start of the COVID-19 pandemic, big publishers reduced prices of e-book licenses by 50% for libraries. In addition, publishers developed catalogs that allowed payment of a fee per book loaned, which is a cheaper alternative to a limited-time license. This popularized digital books even more, increasing e-book checkouts and memberships. As a result of these developments, physical libraries are barely receiving funding, and their efforts to modernize with the times are strongly hindered by fear of litigation for copyright infringement.[i]
At the conception of our nation, our founding fathers recognized the importance of “promot[ing] the Progress of Science and useful Arts” by granting Congress the exclusive power to enact copyright laws to achieve such purpose.[ii]The Copyright Act seeks to achieve this purpose by giving authors a bundle of rights, which includes the exclusive rights to reproduce, distribute, display, or prepare derivative works of their copyrighted material. When a person or entity violates these rights, it is considered copyright infringement, but this is not always necessarily a violation when the defense of fair use is introduced.
The Copyright Act allows for specific uses of copyrighted material that are considered fair “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.”[iii] To determine whether a particular use of copyrighted material is fair use, the Copyright Act provides four non-exclusive factors:
(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.[iv]
A fair-use analysis is fact-intensive, and each case must be decided on a case-by-case basis.
When considering the first factor, courts look at transformative use and commerciality to decide the purpose and character of the use. Transformative use is whether the alleged copyright infringement (“secondary use”) “adds something new, with a further purpose or different character.”[v] Notably, the 1994 Supreme Court case Campbell v. Acuff-Rose Music, Inc., is what “coined the term ‘transformative use.’”[vi] Of these factors, the most important element is the transformative use factor. Transformative use is highly litigated because it is determinative in other factors and “is one of the most dominant considerations in fair use law.”[vii]
A traditional display of transformative use can be found in the case of Yang v. Mic Network, Inc., where the defendant (“Mic”) took a digital screenshot of an article that includes the headline and part of the plaintiff’s (“Yang”) photograph that was licensed to the New York Post for an article named Why I Won’t Date Hot Women Anymore.[viii] Mic used the screenshot as the banner image for Mic’s own article Twitter Is Skewering the ‘New York Post’ for a Piece on Why a Man ‘Won’t Date Hot Women.’ Specifically, Mic identified the source of the banner image and then criticized it by adding his unique commentary. The court found these facts significant since it showed that the banner was not “merely an illustrative aid” but for a different purpose from Yang’s original intent.[ix] As a result, the court held that the use of the banner was transformative and thus fair use.
In American Society for Testing and Materials, et al. v. Public.Resource.Org, Inc., the defendant (“Public Resource”) posted on its website copies of many incorporated legal standards, which included standards produced and copyrighted by the plaintiffs in its mission of “republishing. . . standards. . . to provide the public with a free and comprehensive repository of law.”[x] The court found that since Public Resource’s mission is distinct from the plaintiff’s mission “to advance science and industry by producing standards,” Public Resource’s use of the legal standards is transformative even though Public Resource did not alter or add to the original.[xi] In determining that Public Resource’s use was transformative in function, the court differentiated the intention of using the content to state that “this is the law” with intending to use the information to state that “these are the best practices in the industry.”[xii]
How does transformative use affect libraries seeking to provide e-books? Recent headlines read, “Internet Archive loses appeal, court rules e-book lending is copyright infringement,” which is misleading on what is actually happening with e-books.[xiii] In the recent case Hachette Book Group, Inc. v. Internet Archive, the defendant, Internet Archive (“IA”), is a nonprofit organization with a mission “to provide universal access to all knowledge” and therefore partnered with two companies to scan their out-of-circulation books to be posted as a digital version available to IA free account holders.[xiv] IA’s digital books made the author’s works available to read, substituting the original work, and because they did not add anything new to the work, they were not transformative. In other words, the conversion of print books to digital versions merely repackages and republishes the original work and, therefore, is just derivative work that directly competes with the publishers’ e-books they sell. Thus, the fair use doctrine could not be applied.
In Authors Guild, Inc. v. HathiTrust, the defendant used Google’s electronically scanned books for the purposes of preserving the books, creating a full-text search engine, and allowing electronic access for print-disabled patrons.[xv]Authors Guild sued HathiTrust because Authors Guild had only granted Google, not HathiTrust, the right to use their books. The court determined that HathiTrust’s use of the electronic scans was transformative because the creation of the search engine itself is “quintessentially transformative use,” and thus fair use.[xvi] Additionally, although providing copyrighted materials to disabled readers is not transformative, the court held that it is nonetheless fair use due to Congress’ intent to provide accommodations for individuals with its passage of copyright law.
These instances of copyright infringement show that some creative avenues in innovation are cause for lawsuits, and libraries are being affected by them. Libraries are supposed to be where the free exchange of knowledge occurs, but the legal uncertainty surrounding e-books and copyright infringement is disrupting that. Libraries are being left on the back burner, which is a danger to educational support and the preservation of information. There should be an exception for libraries since they are nonprofits, where they can own e-books to loan out, just like physical books, instead of paying for a license. There can be software in place to prevent the copying of digital texts, similar to how Netflix does not allow viewers to screenshot content. This concept would help libraries stay relevant while also helping avoid the issue of lower inventory due to unreturned books. As long as there are legal safeguards to protect authorship rights, why can’t libraries have a more cost-effective alternative that allows them to stay relevant and within their funding limits?
[i] See Anna Hickey, Empowering Libraries to Lend Out Ebooks, Pub. Knowledge Insights (Oct. 6, 2021), https://publicknowledge.org/empowering-libraries-to-lend-out-ebooks/.
[ii] U.S. Const. art. I, § 8, cl. 8.
[iii] Hachette Book Grp., Inc. v. Internet Archive, No. 23-1260, 2024 U.S. App. LEXIS 22455, at *20 (2d Cir. Sept. 4, 2024).
[iv] 17 U.S.C. § 107.
[v] Hachette Book Grp., 2024 U.S. App. LEXIS 22455, at *22.
[vi] Transformative Use Plays a Critical Role in Copyright Case Decisions, Purdue Glob. L. Sch.: News & Comment. (Aug. 26, 2021), https://www.purduegloballawschool.edu/blog/news/transformative-use; Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 580–81 (1994).
[vii] Clack D. Asay, Is Transformative Use Eating the World, 61 Bos. Coll. L. Rev. 905, 930 (2022).
[viii] See Yang v. Mic Network Inc., Nos. 20-4097-cv(L), 20-4201-cv (XAP), 2022 U.S. App. LEXIS 8195, at *1 (2d Cir. Mar. 29, 2022).
[ix] Id.
[x] Am. Soc’y for Testing & Materials v. Pub.Resource.Org, Inc., 82 F.4th 1262, 1269 (D.C. Cir. 2023).
[xi] Id. at 1268.
[xii] Id.
[xiii] James Farrell, Internet Archive Loses Appeal, Court Rules E-Book Lending Is Copyright Infringement, SiliconANGLE (Sept. 4, 2024, 21:53), https://siliconangle.com/2024/09/04/internet-archive-loses-appeal-court-rules-e-book-lending-copyright-infringement/.
[xiv] Hachette Book Grp., Inc. v. Internet Archive, No. 23-1260, 2024 U.S. App. LEXIS 22455, at *11 (2d Cir. Sept. 4, 2024).
[xv] See Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 90 (2d Cir. 2014).
[xvi] Id. at 97.
