The case in the Southern District of New York between the Internet Archive and a group of major publishers has finally wrapped up.
Last March, the Internet Archive’s Controlled Digital Lending (CDL) program was held to be a violation of copyright, and not an allowable fair use. The Court requested that the parties work together to figure out a procedure for determining a final judgment in the case. This could have included more hearings to determine several questions relating to damages in the case under 17 U.S.C. 504(c)(2), including issues such as the Internet Archive counting as a library, and if it had reasonable grounds to assume the activity was fair use.
After some delay, the parties came to an agreement that did not involve more hearings. They agreed on monetary damages (the amount and how it was determined remains confidential) and on an injunction prohibiting the Internet Archive from distributing any digitized books that any of the plaintiffs sell commercially as an ebook, or scanning books for that purpose. The publishers had wanted the injunction to cover all books, regardless of availability in an electronic format, but as the trial only included works sold as ebooks, the court concluded that its opinion did not address the issue of books not available as ebooks. The court does not say that is fair use, but it has not said it isn’t fair use either. This leaves the door open for Controlled Digital Lending of books that are not available as ebooks, which could be particularly helpful in the case of CDL of orphan works. The Internet Archive is also still allowed to use the books for accessibility purposes, and for services that have already been determined to be fair use, like Google Books use of digitized books to return snippets of text based on searches.
The case in the District Court may be over, but the Internet Archive has announced its intent to appeal the decision to the Second Circuit Court of Appeals. In the meantime, they have a new case with record labels about the Great 78 project to worry about.