Rachel Altemose
Hachette Book Grp., Inc. v. Internet Archive, a Second Circuit decision from last September, epitomizes the age-old, yet never-ending, debate regarding the role of copyright in the regulation of new technology. The plaintiffs, four major book publishers, alleged that copyright exists to protect and incentivize creators, but the defendant, a non-profit digital library, argued that rewarding authors must always come second to “promoting broad public availability” of the works said authors create.[1] In the Hachette opinion, the Second Circuit seemed particularly concerned with achieving some kind of “balance” between these “competing claims on the public interest,” but, as evidenced by the last seventy years of caselaw, it seems inevitable that courts ultimately favor one aim over the other.[2]
Courts have oscillated over the years when weighing the interests of creators versus “the public,” particularly when considering the necessity of innovative technologies in fair use cases. Given the limited statutory guidelines for evaluating “public benefits,” such dramatic fluctuation is not surprising.[3] In the mid-1970s, caselaw generally emphasized that, in times of technological change, the Copyright Act must be construed “in light of [its] basic purpose” and “sole interest:” guaranteeing that the public will derive their due benefits from authors’ creative works.[4] This ideology prevailed in many new technology cases of the 1970s and ‘80s, where the court feared enforcing copyright might stifle technological development—particularly after the Supreme Court’s decision in Sony Corp. of Am. v. Universal City Studios, Inc. that championed the rights of the consumer.[5] By the early 2000s, though, there was a noticeable shift. Judges reemphasized the importance of protecting the author and rejected the “inequitable” defense of "consumer protection."[6] Recent caselaw—looking at you, Warhol—has also significantly increased the requirements for transformativeness in the fair use analysis.[7] While Warhol did not deal with technology, it demanded “something more” than mere public benefit or innovation to rule that something is transformative and, therefore, fair use.[8] As a result, Warhol seemingly cabined the court’s previously unlimited discretion to allow “public benefit” to dominate entire opinions.
When the Second Circuit decided Hachette, it was thus questionable if, and how, public benefit and Warhol would enter the analysis. Internet Archive (“IA”), the defendant, began a Free Digital Library project to help libraries expand their service to patrons and “do what they have done for generations—lend the books they own—but in the digital space.”[9] Like the Google Books project, IA created digital copies of the libraries’ physical books that users could access via the IA website, free of charge.[10] The defendant’s appellate brief harped on these benefits and admonished the district court’s opinion that “barely mention[ed]” public benefit and the “goal” of copyright: to promote broad availability of literature, music, and other arts.[11] The plaintiffs, on the other hand, berated IA for encroaching on author’s rights and their e-book licensing market and argued that fair use is no longer “a free-for-all policy debate,” but a structured analysis anchored in § 107 of the Copyright Act.[12] Ultimately, the plaintiffs’ rationale succeeded. Even before reading the Second Circuit’s opinion, the developments since Sony presaged the unlikelihood that the unfettered public benefit analysis of Sony and its predecessors would significantly influence the court’s decision. Inspired by the Warhol standard, Hachette now requires technological innovation that surpasses the benefits or “efficiencies” offered by preexisting technology.[13] The court no longer considers any evident benefit transformative, but only Sony-esque innovation.[14]
Hachette is just a Second Circuit decision, but its interpretation of Warhol in light of new technology will likely inspire many courts going forward.[15] The biggest question is how Warhol/Hachette will apply to AI—the most significant and “transformative” technology currently under debate in copyright law. While LLMs have already become ubiquitous and, for many, critical to daily life, the long-term effects on authors appear drastic.[16] The Hachette court seems to take these long term consequences into account, but AI does feel like the Betamax (of Sony fame) of this generation—something so indispensable and innovative, that courts may disregard the author-friendly focus of Hachette and revive the diminishing influence of “public benefits.”[17] As per usual, only time will tell.
[1] Hachette Book Grp., Inc. v. Internet Archive, 115 F.4th 163, 173 (2d Cir. 2024).
[2] Id. at 179.
[3] 17 U.S.C. § 107; see Joshua Berlowitz, The Five-Factor Framework, 46 Colum. J.L. & Arts 61, 67–68 (2022). At no point does “public benefit” appear as a consideration in the statutory requirements for the fair use analysis. However, this has not prevented the courts from including such considerations in their decision-making over the years—especially when it comes to new technology.
[4] Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975).
[5] Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984).
[6] See UMG Recordings, Inc. v. MP3.com, Inc., 92 F. Supp. 2d 349 (S.D.N.Y. 2000); A&M Records v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).
[7] See Fox News Network, LLC v. TVEyes, Inc., 883 F.3d 169 (2d Cir. 2018); Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015); VHT, Inc. v. Zillow Grp., Inc., 69 F.4th 983 (9th Cir. 2023); Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023).
[8] Warhol, 598 U.S. at 530 (merely “adding something new” or changing the format of a work is not enough to constitute transformativeness—the degree of transformation must “go beyond that required to qualify as a derivative”); see also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (introducing the “transformativeness” requirement into the first factor of the fair use analysis, where courts must investigate whether a new work is “transformative,” i.e., if it “merely ‘supersede[s] the objects’ of the original creation” or adds new “expression, meaning, or message”).
[9] Stephen Wolfson, Hachette Book Group v. Internet Archive and the Future of Controlled Digital Lending, Penn Libraries: News (Feb. 21, 2024), https://www.library.upenn.edu/news/hachette-v-internet-archive [https://perma.cc/MV22-8CC4] [https://web.archive.org/web/20250209150646/https://www.library.upenn.edu/news/hachette-v-internet-archive].
[10] Hachette, 115 F.4th at 175; see Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015).
[11] Brief for Defendant-Appellant at 29, Hachette Book Grp., Inc. v. Internet Archive, 115 F.4th 163 (2d Cir. 2024) (No. 23-1260).
[12] Brief for Plaintiffs-Appellees at 34, Hachette Book Grp., Inc. v. Internet Archive, 115 F.4th 163 (2d Cir. 2024) (No. 23-1260). Section 107 codified the four-factor fair use analysis.
[13] Hachette, 115 F.4th at 183, 195. Specifically, the court found that IA’s technology did not offer anything more than the plaintiffs’ existing e-book licensing service.
[14] Id.
[15] Kate Knibbs, The Internet Archive Loses Its Appeal of a Major Copyright Case, Wired: Business (Sep. 4, 2024), https://www.wired.com/story/internet-archive-loses-hachette-books-case-appeal/ [couldn’t generate permalink] [https://web.archive.org/web/20250209153213/https://www.wired.com/story/internet-archive-loses-hachette-books-case-appeal/].
[16] See Complaint, N.Y. Times Co. v. Microsoft, No. 23-cv-11195, U.S. Dist. LEXIS 212998 (S.D.N.Y. Nov. 22, 2024).
[17] Audrey Pope, NYT v. OpenAI: The Times’s About Face, Harv. L. Rev.: Blog Essay (Apr. 10, 2024).