Even Free Libraries Come With a Cost; The National Law Review, September 13, 2024

 Anisa Noorassa of McDermott Will & Emery , The National Law Review; Even Free Libraries Come With a Cost

"The US Court of Appeals for the Second Circuit affirmed a district court’s judgment of copyright infringement against an internet book archive, holding that its free-to-access library did not constitute fair use of the copyrighted books. Hachette Book Group Inc. v. Internet Archive, Case No. 23-1260 (2d Cir. Sept. 4, 2024) (Menashi, Robinson, Kahn, JJ.).

Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House (collectively, the publishers) brought suit against Internet Archive alleging that its “Free Digital Library,” which loans copies of the publishers’ books without charge, violated the publishers’ copyrights. Internet Archive argued that its use of the publishers’ copyrighted material fell under the fair use exception to the Copyright Act because Internet Archive acquired physical books and digitized them for borrowing (much like a traditional library) and maintained a 1:1 ratio of borrowed material to physical copies except for a brief period during the COVID-19 pandemic.

The district court reviewed the four statutory fair use factors set forth in § 107 of the Copyright Act:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
• The nature of the copyrighted work.
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
• The effect of the use upon the potential market for or value of the copyrighted work.

The district court found that Internet Archive’s use of the works was not covered by the fair use exception because its use was non-transformative, was commercial in nature due to its solicitation of donations, and was disruptive of the market for e-book licenses. Internet Archive appealed.

The Second Circuit affirmed, addressing each factor in turn."

The Second Circuit Shuts Down Resale of Digital Music Files in Capitol Records, LLC v. ReDigi, Inc., Lexology, December 18, 2018

Weil Gotshal & Manges LLP - Samuel J. Zeitlin and Bruce Rich, Lexology; The Second Circuit Shuts Down Resale of Digital Music Files in Capitol Records, LLC v. ReDigi, Inc.

 

"If you purchase a copy of music in physical form--like a CD or vinyl record-- you own your copy even though you do not own the underlying songs. Although the law reserves to the copyright owner the right to make more copies, she cannot stop you from selling your copy or giving it away. This rule is called the right of first sale, and it enables all secondhand sales of copyrighted material, from the smallest used bookstore to eBay and Amazon Marketplace. The right of first sale began as judge-made law in the early 20th century, and today is part of the copyright statute at 17 U.S.C. 109(a). In technical terms, Section 109(a) creates an exception for the owners of legal copies to the copyright owner's exclusive right to distribute her work, although not to her exclusive right to reproduce her work.

 

But what happens if you purchase a digital music file? Digital copying unravels the balance between the rights of copyright owners and customers set by the first sale doctrine. Section 109(a) only allows the owner of a copy to distribute it, not to make more copies. In a digital environment, however, distributing a file is done by making a copy of that file in a new location. When the distinction between copying and distributing collapses, is it still possible to exercise the right of first sale?

 

The Second Circuit has just confronted this issue in its December 12, 2018 ruling on the legality of ReDigi, an online marketplace designed to let people resell digital music files purchased from iTunes. In a unanimous decision in Capitol Records, LLC v. ReDigi, Inc. penned by the Second Circuit's preeminent copyright expert, Judge Pierre Leval, the court upheld the conclusion of the district court that ReDigi's business model violated the law."

Abbott and Costello Heirs Lose Appeal Over Broadway Play's Use of "Who's on First" Routine; Hollywood Reporter, 10/11/16

Eriq Gardner, Hollywood Reporter; Abbott and Costello Heirs Lose Appeal Over Broadway Play's Use of "Who's on First" Routine:

"On Tuesday, the Second Circuit Court of Appeals affirmed dismissal of a copyright lawsuit brought by the heirs of William "Bud" Abbott and Lou Costello against producers of the Tony Award-nominated play Hand to God. However, the appeals court didn't accept dismissal for the same reason the lawsuit was initially thrown out. And in coming to its decision, the 2nd Circuit raises the possibility that the world- famous comedy routine "Who's on First?" is no longer under copyright."

Appeals Court Hears Arguments on Banned ‘Catcher’ Sequel; New York Times, 9/3/09

Dave Itzkoff via New York Times; Appeals Court Hears Arguments on Banned ‘Catcher’ Sequel:

If Fredrik Colting needs any blurbs for his book “60 Years Later: Coming Through the Rye,” he probably should not seek one from Judge Guido Calabresi. Judge Calabresi was one of three judges on a panel at the United States Court of Appeals for the Second Circuit in Manhattan that on Thursday heard arguments on whether Mr. Colting should be allowed to publish the book in the United States. In July, a federal district judge indefinitely enjoined the publication of “60 Years Later,” which Mr. Colting wrote under the pen name J. D. California, and has promoted as a sequel to the J. D. Salinger novel “The Catcher in the Rye.” On Thursday, The Associated Press reported, Judge Calabresi called Mr. Colting’s book a “rather dismal piece of work.” But two judges on the panel questioned if the federal district court had heard enough evidence before issuing its injunction. The court did not immediately rule on Thursday."

http://artsbeat.blogs.nytimes.com/2009/09/03/appeals-court-hears-arguments-on-banned-catcher-sequel/?scp=1&sq=colting&st=cse