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Court Brief

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The Copyright Act and libraries have a shared purpose: to spread knowledge to the public. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 574 (1994) (noting the purpose of copyright is “[t]o promote the Progress of Science and useful Arts”). Libraries rely on balanced, careful application of the fair use balancing test to achieve that purpose. Amici respectfully submit that the District Court's decision collapsed copyright law's multi-part fair-use balancing test into a theory focused primarily on economics. Amici further respectfully submit that the District Court's fair-use analysis was broadly applied to Internet Archive's (IA) activities without distinguishing between the many different types of uses of digitized materials at issue in this case.

The result in this case and the implication for future ones is that not only libraries' various CDL programs but also their other longstanding, customarily permitted activities to distribute knowledge to the public could be considered commercial activities that violate copyright. A library offering standard services to connect the public to authors' works, such as public read-aloud hours, while also conducting usual non-profit activities such as inviting donations through its website could suddenly be targeted for copyright infringement.

In support of the IA, amici respectfully submit that this Court should vacate and remand so: (1) the District Court can separately analyze each of the actual uses of the works at issue in this case under the fair use balancing test and carefully restrict their analysis and holding to those actual uses; and (2) the District Court can appropriately weigh access to knowledge and public interest in the fair use balancing test.

Amici address three points to help the Court's consideration of this case. First, the District Court did not conduct the required work-by-work analysis to determine fair use and failed to account for and appropriately distinguish multiple distinct uses of digitized materials which have differing methods, purposes, and impact. Second, the District Court's analysis drastically expands the definition of commerciality in the fair use balancing test. This expansion will chill many previously legitimate fair uses including by libraries as part of their mission to spread knowledge to the public. Third, this expansion of commerciality overrides the purpose of the initial Copyright Act to promote the spread of knowledge. It also counters the Copyright Act's text and Congress' intention to broadly define fair use to require it to be determined based on each use's particular circumstances.


HACHETTE BOOK GROUP, INC., Harpercollins Publishers LLC, John Wiley & Sons, Inc., Penguin Random House LLC v. Internet ARCHIVE v. Does 1-5, inclusive, U.S. Court of Appeals, Second Circuit, No. 23-1260.