Late last month a federal court ruled against the Internet Archive (IA) and its controlled digital lending (CDL) program. IA has 30 days from the district court’s judgment to file notice of appeal, and it has stated its intent to do so. At issue was whether a library could legally digitize the books it already owned and lend the digital copies in place of the print. The IA maintained that it could, as long as it lent only the same number of copies it owned and locked down the digital copies so that a borrower could not copy or redistribute them. It would be doing what libraries had always done, lend books—just in a different format. The publishers, on the other hand, asserted that CDL infringed on authors’ copyrights, making unauthorized copies and sharing these with libraries and borrowers, thereby depriving the authors and publishers of rightful e-book sales. They viewed CDL as piracy.
While Judge John G. Koeltl’s opinion addressed many issues, all his reasoning was based on one assumption: that copyright primarily is about authors’ and publishers’ right to profit. Despite the pervasiveness of this belief, the history of copyright tells us something different.
What persuaded early state and federal government actors to establish copyright was authors’ reluctance to release their books publicly without the ability to stop the then-rampant piracy by publishers. The lack of copyright, then, was seen as a barrier to information reaching the public, and lawmakers enacted copyright to remove that barrier. This societal purpose is reflected in the wording of the Copyright Clause of the Constitution, which makes the spread of knowledge its goal, with copyright merely being a means to achieve that end.
The practice of copyright aligned with its public purpose for the better part of two centuries:
Each change in technology—from piano rolls to film to DVDs—created new challenges for copyright, but the end user remained unaffected. Enforcement was aimed only at unauthorized uses of copyrighted works for profit. But starting in the 1970s, the nature of copyright enforcement changed, with plaintiffs seeking to constrain end uses and copyright owners engaging in end runs around fair uses.