In a highly anticipated appeal brief, lawyers for the Internet Archive argue that district court judge John G. Koeltl misunderstood the facts and misapplied the law in finding the IA’s scanning and lending of print library books infringed publishers’ copyrights, telling the U.S. Court of Appeals for Second Circuit the decision should be reversed.

“The core question for every fair use case is whether copyright’s goals ‘would be better served by allowing the use than by preventing it.’ The district court lost sight of that question,” the IA’s opening appeal brief states. “Its rejection of IA’s fair use defense was wrongly premised on the supposition that controlled digital lending is equivalent to indiscriminately posting scanned books online. That error caused the court to misapply the fair use factors, give improper weight to speculative claims of harm, and discount the tremendous public benefits controlled digital lending offers. Given those benefits and the lack of harm to rightsholders, allowing IA’s use would promote the creation and sharing of knowledge—core copyright purposes—far better than forbidding it.”

The filing comes after Koeltl, in an emphatic 47-page opinion, eviscerated the Internet Archive’s fair use defense earlier this year.

“At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book,” Koeltl wrote in a March 24 opinion granting the publisher plaintiffs’ motion for summary judgment and denying the Internet Archive’s cross-motion. “But no case or legal principle supports that notion. Every authority points the other direction.” A final negotiated consent judgment was entered on August 11.

In their appeal brief, IA lawyers insist that Koeltl made crucial errors in evaluating the controversial scanning and lending program’s fair use argument, particularly in terms of the decisive first and fourth factors of the court’s four-factor fair use test.

On the first factor, the purpose and character of the work, the IA appeal brief argues that the court incorrectly deemed the IA’s scanning and lending “commercial” because, “even though IA makes no profit,” IA derives “ ‘tangential benefits’ from operating its free digital library.” Furthermore, Koeltl found that the IA’s use was not “transformative,” viewing the lending of scanned print books as “as no more than format-shifting.” IA lawyers argue that his assessment is wrong.

“IA’s controlled digital lending is noncommercial, transformative, and justified by copyright’s purposes,” the brief insists. “IA is a nonprofit charity that offers digital library services for free. Controlled digital lending is transformative because it expands the utility of books by allowing libraries to lend copies they own more efficiently and borrowers to use books in new ways. There is no dispute that libraries can lend the print copy of a book by mail to one person at a time. Controlled digital lending enables libraries to do the same thing via the Internet—still one person at a time. And even if this use were not transformative, it would still be favored under the first factor because it furthers copyright’s ultimate purpose of promoting public access to knowledge—a purpose libraries have served for centuries.”

The district court did not deny that controlled digital lending benefits the public, but it concluded those benefits were outweighed by the harms to Publishers. That, too, was error.

And in terms of the fourth factor, market impact, IA lawyers insist there is no “empirical” evidence showing a negative financial impact on the publishers. “Controlled digital lending is not a substitute for Publishers’ e-book licenses because it offers a fundamentally different service. It enables libraries to efficiently lend books they own, while e-book licenses allow libraries to provide readers temporary access through commercial aggregators to whatever selection of books Publishers choose to make available, whether the library owns a copy or not,” the brief states.

“In concluding otherwise, the district court misunderstood controlled digital lending, conflating it with posting an e-book online for anyone to access at any time,” the brief goes on to argue. “The district court did not deny that controlled digital lending benefits the public, but it concluded those benefits were outweighed by the harms to Publishers. That, too, was error. Even if there existed some (unproven) market harms, they are at best small, given the lack of any evidence of their existence. The benefits, on the other hand, are substantial and supported by numerous record examples where IA’s library was used to further education, research, and scholarship. These benefits far outweigh any minimal harms, so the fourth factor favors fair use.”

In his March 24 decision, however, Koeltl strongly rejected these very arguments, holding that the IA’s scanning and lending program “supplants the Publishers’ place” in a “thriving” library e-book licensing market, and holding that, as a matter of law, the “IA’s bootleg e-books” deprives the publishers of revenues “to which they are entitled as the copyright holders." And, crucially, Koeltl brushed aside the Internet Archive's “public benefit” argument. “These alleged benefits cannot outweigh the market harm to the Publishers,” Koeltl found.

In a statement given at an online press conference on December 15, IA founder Brewster Kahle said the stakes of the appeal are high. “This lawsuit is about more than the Internet Archive—it is about the role of all libraries in our digital age,” he said. “If this decision is left to stand, it will take away a library’s ability to lend books from its permanent collections to digital learners.”

EFF legal director Corynne McSherry, who is representing the IA, added that the suing publishers are “not seeking protection from harm to their existing rights” but seeking a new right: “the right to take advantage of technological developments to control how libraries may lend the books they own.”

In a September statement, AAP general counsel Terrence Hart said that the publishers would “vigorously litigate” the appeal.

“The publisher plaintiffs and AAP community stand behind the District Court’s clear opinion in this case, establishing that that Internet Archive’s industrial scale format-shifting activities constitute copyright infringement, consistent with ample other precedent that defines the clear boundaries of fair use and first sale provisions,” Hart said. “There is simply no legal support for the notion that Internet Archive or a library may convert millions of e-books from print books for public distribution without the consent of, or compensation to, the authors and publishers.”

IA officials said that they are expecting amicus briefs in support of the IA's case to be filed this week. And in terms of the appeal’s timeline, the publishers are expected to file their appeal brief in February, with an IA reply to follow—meaning it will likely be at least six months before a hearing date is set, McSherry said.