Hachette v. Internet Archive

I am not a lawyer, but I love constructing counterexamples. I’ve been thinking about the Hachette v. Internet Archive. The Archive scanned a bunch of books they owned, and then lent the scans to users on the Internet, making sure that for each physical book, only one scan was lent at a time. The courts ruled that this was copyright infringement.

I imagine a sequence of cases for a library (the Internet Archive is officially a library in California):

1. A user comes to the library and reads a book in the ordinary way.

2. The book is delicate and valuable, so the library puts the book in a metal box with a window, with delicate robotically controlled page flippers controlled by buttons outside the box. The user reads the book through the window while flipping pages with the buttons.

3. Same as 2, but the user wears glasses.

4. Same as 2, but the user lives across the street from the library, and the librarian has placed the box in the library window so pointed that the user, and the user alone, can read the book via an ordinary refracting telescope, with the user having buttons connected to the page flippers via long wires.

5. Same as 4, but the telescope is digital: it has an optical sensor connected electronically to a screen (basically, a CCTV system).

6. Same as 5, but the optical sensor is inside the library while the digital telescope’s screen is in the user’s home.

7. Same as 6, but the user can be arbitrarily far away, because wires are very long.

8. Same as 7, but instead of custom wiring for the connection between the sensor and the screen and the user’s button’s and the page flippers, a TCP/IP protocol over the Internet is employed.

9. Same as 8, but to reduce wear and tear on the book, the sensor caches the images, so that if the user chooses to jump to a page that has already been viewed, the flippers do not need to operate. The cache is deleted at the end of the session.

10. Same as 9, but the cache is not deleted at the end of the session, but is kept for the next session with the same user.

11. Same as 10, but the cache is kept for the next user. Only one user can access the book at once.

12. Same as 10, but a full cache is generated for all the pages once and for all users. Only one user can operate the system at once.

13. Same as 11, but the whole cache is copied to the user’s device and removed once the loan period expires.

Here, 12 is pretty much what the Archive was doing when it was letting users download books for a period, and 11 was what they were doing when it was letting users view the books via a browser.

If 11 and 12 are not allowed, at what point do things become impermissible?

If the worry is about there being copying, then there is already copying at 5: the electrical data from the sensor is copied to the screen. If the user flips through the book, the copying is of the book as a whole, though the copies are constantly deleted. But it seems to me (who am not a lawyer) that we shouldn’t make a significant distinction between a digital and an analogue telescope. Moreover, even viewing by eye involves copying. As soon as a page of a book is exposed to light, a large stream of copies of the data in the book appear in the air as patterns of light. Whether these copies are in the air or in glass (as in the case where glasses or an analogue telescope is used) does not seem significant. Is it significant if the data is in electrons rather than photons, as in 5?

Perhaps the worry is about non-evanescent copies. That sounds reasonable. When a book is exposed to light, the copies that are immediately made are evanescent (though very large in quantity), and likewise if a sensor and a screen arrangement (e.g., CCTV) is used. Thus, 1-8 might be distinguished from 9-12, and maybe the caching introduced at 9 is the problem.

However, the Internet and other electronic devices already have caching built in at various levels, so there is already some “hidden” caching introduced at 9, so the existence of caching doesn’t seem that significant. It seems like caching is just an efficiency improvement that does not significantly affect the normative issues.