> In addition to the general "innocent infringer" provision clause (2) deals with the special situation of teachers, librarians, archivists, and public broadcaster's, and the nonprofit institutions of which they are a part. Section 504(c)(2) provides that, where such a person or institution infringer copyrighted material in the honest belief that what they were doing constituted fair use, the court is precluded from awarding any statutory damages. It is intended that, in cases involving this provision, the burden of proof with respect to the defendant's good faith should rest on the plaintiff.
From page 163 of https://www.copyright.gov/history/law/clrev_94-1476.pdf
Also recited in a recent informational circular at page 22 of https://www.copyright.gov/circs/circ21.pdf
Note that the circular seems to assume the apparent clerical error, "institution infringer copyrighted material", was intended to be "... infringes copyrighted material...", which makes sense as a simple typo--'r' instead of 's'. If so, the potential limitation in the statutory language to reproduction claims only, instead of any infringement claim such as distribution, may have been accidental; or an oversight, the committee being fixated on the increasing use of photocopying and the implications for libraries and schools.
>> The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107
Specifically, the plaintiffs have to show that uncontrolled digital lending does not constitute fair use.
That doesn't seem very difficult to me.
Is this basically what they are suggesting here? They are supplying the copies, and it's up to the users whether or not they break the law from there?
> Is this basically what they are suggesting here? They are supplying the copies, and it's up to the users whether or not they break the law from there?
Copyright doesn't work like that - the party who makes the copy is the one who does the infringing.
If you want to use a traditional library analogy, what IA did was basically photocopy a bunch of books and put them on the shelf for patrons to check out.
Yes I know. It definitely makes sense in most cases. If I'm handing out books in a park then people should be able to assume they aren't breaking the law by taking a copy.
Maybe the law needs an update for this concept of a repository. Where they can keep a catalogue of everything regardless of copyright but the requester bears the clearly marked and advertised burden of satisfying the copyright rules once they ask.
I don't understand why this would be a good idea. Perhaps you could elaborate?
We already have libraries that operate just fine under the current set of rules. I think controlled digital lending is probably a good idea and something that should get more legal support, however.
That's pretty much what I was suggesting, mentioning copyright rules wrt fair use etc.
Does it make sense that a library has 3 digital copies of a book so that only 2 readers and a single teacher can check it out at once, with other teachers waiting for a spare copy for lesson preparation? Some update or codification based on the status of the borrower might be useful.
I think it makes sense for society to have unlimited copies available for teachers, journalists, etc as necessary to perform their roles. So this would mean some borrowers can borrow regardless of the stock on hand, while others have to wait in line.
The logical extension of this is we could have titles where the library has paid nothing or a nominal bulk fee, meaning regular users cannot check out copies but the above users could.
"Bad faith" has a specific legal meaning that does not apply here.
In order to obtain statutory damages, they need to show that IA did not have reasonable grounds to believe that unlimited digital lending is fair use.
Here’s a story about weak but reasonable grounds: Say I think it rained last night because I glanced out the window in the morning and saw the street was wet. You say it didn’t because you got up earlier than me, saw everything was dry, and you saw a street cleaner come through, making the street wet. Clearly you’re right but before I had this information, I had reasonable grounds for my belief.
https://kylecourtney.com/2020/03/11/covid-19-copyright-libra...
As a non-profit library the plaintiffs effectively have to show that the Internet Archive acted in bad faith[1] in order to receive statutory damages. § 504 (c)(2) says,
> The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords
Without full statutory damages I doubt IA would have to pay much of anything--at least, not so much that they become insolvent, unless the judge is mean-spirited--as it's unlikely the plaintiffs could show even a hint of significant economic loss. In fact, the inability to show economic loss in this case is likely to be critical to IA's Fair Use argument. In any event, I suspect it's this mandatory remittitur clause that gave the IA the courage to do what they did.
I agree the IA's interpretation of the law is unlikely to succeed given modern courts' sentiments regarding copyright. But is their legal argument so bad as to constitute bad faith? During a global pandemic? Where armies of educators will come out in defense of IA for the social benefit they provided given the exigent circumstances--a near complete, if not wholly complete, inability to gainfully access not only hard copies but electronic copies of these resources as well?
In light of the situation, it might even be possible that a trial court either approves of IA's theory or remits almost all damages, and the appellate courts refuse review, electing not to fall into the IA's or the publishing industry's trap of leveraging the pandemic to shape copyright law. In fact, rejecting IA's defense but using remittitur to reduce damages to a token amount is probably what a risk-averse trial judge might do, hoping that both IA and the publishers will accept a detente.
[1] I'm being a little lazy. I don't know of any precedent that equivocates the statute's language to the term of art, bad faith. But it seems close enough for loose talk.
EDIT: I forgot the wrinkle in that remittitur clause that I belatedly caught the first time I considered it a few weeks ago: it specifically refers to reproduction, not distribution or infringement generally. I dunno what the caselaw looks like, but that's an amateur oversight on my part, which I've apparently made twice. I guess I'm just eager to defend the IA.