If you're going to use books strictly for decoration you can at least show off a bit by using real yet uncut books. There is literary precedent.

Can't have been -- the 'I' stands for 'Intelligence'

He's in his 70s, actually. And probably more on the ball than you give him credit for.

No.

It's an incentive. There are many other incentives as well, and often they are even stronger. Also note that the incentive provided by copyright is somewhat more complex than one might initially imagine.

In any event, I agree that copyright shouldn't be based on the life of the author; it should be for a predictable term of years, perhaps with the option to renew periodically, if desired at the time.

That's a poor assumption. In the US, copyright treaties have no meaningful legal effect; federal copyright law is what's in Title 17 of the US Code. We are actually in violation of a number of treaty provisions, but we don't care. (For example, check out WTO Dispute 160)

That being said, your analysis is basically correct with regard to the prima facie case of infringement. Frankly, it was clear enough that the court didn't need to spend much time on it.

That is correct. You can only distribute a copy, and a copy is defined in 17 USC 101 as basically being a tangible object in which a work is embedded. So a paper codex with a work printed in it is a copy of that work; a flash drive with a work stored in it is a copy of that work.

A digital file, divorced from any particular medium it's stored in, is not a copy. When you upload and download you're really just making a new copy because nothing physical is transferred from the server to the client.

But courts have persistently been calling it distribution for decades, even though it really ought to be public performance and display and contributory infringement to the other party making a copy. It is probably a lost cause at this point.

I agree; they're not derivatives.

The fair use factor doesn't care why there's a market, just that there is one, or is likely to be one, and that the use is harmful to it.

Bah; I've yet to see an ebook that was decently formatted at all. So far it appears that good typography is available only in print.

Only if the making of the OCR'ed copy was legal. Fair use is a case-by-case analysis. Just because Diamond v. RIAA turned out well in 1999 doesn't mean space shifting to OCR would now. (In fact, I'd be very worried that a new round of anti spaceshifting litigation would turn out the other way)

Same as above. Once you have a legally made copy, it is subject to first sale. The question is whether the OCR copy is legally made.

Google Books succeeded, but then they don't lend out books.

I don't think so. Even then the relatively low-priced hardcopies, and scans of them that can be used indefinitely, would displace recurring licensing fees. There is a market for e-book licensing to libraries, and this would negatively affect it.

That's not an issue the court cares about in this case, and also that's a stupid system. Copyright term length should not be based on life of the author in any respect; a term of years, preferably short but with some additional terms if requested timely, is better. It's more predictable for everyone to arrange their affairs around, it's almost always just as good for authors and publishers, it's definitely better for the public, and it worked great for centuries so it's got that in its favor too.

Except it is cut and dry. Copyright law doesn't say you can only lend out as many copies as you have. It says you can't make copies without permission, or without falling within an applicable exception in the law, and it says that you can't lend copies unless they were lawfully made or again, you have permission.

That's how it keeps you from lending out more copies than you have -- you can't make more and can't lend any you made yourself, or you got permission (probably in exchange for a substantial licensing fee).

No, they won. Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015).

Yeah, that's about what I expected would happen.

There's no doubt whatsoever that this is a prima facie infringement -- copies are being made and distributed.

The question was whether there were any exceptions to copyright that this could fall within.

Fair use was always going to fail. Typically courts consider four factors from the fair use statute (17 USC 107) in determining whether a particular use was fair or not. These are 1) The purpose and character of the use, including whether it is for commercial purposes or nonprofit educational purposes; 2) The nature of the work; 3) The amount and substantiality of the portion used; and 4) the effect of the use on the potential market for or value of the work. It's not mathematical, and the factors may not have equal weight. It's very fact dependent. And the same use in different circumstances may change from being fair to unfair or vice versa. In practice, I would say that factor four tends to be key more often than not, but that doesn't mean it should always control.

Anyway, here the issue was going to be factors 1 and 4. Factors 2 and 3 are solidly against the Internet Archive -- the works included all kinds, such as fictional works (protected more than factual ones) and they were copied in full.

Factor 1 includes whether the use is transformative, that is whether the work is being added to or changed meaningfully into something else. This wasn't transformative; the books are still books. Changing their format from hardcopy to electronic doesn't add or change anything. The Court did get it wrong when it said that it was the preparation of a derivative work; it's not that either. It's just straight-up copying, just as if one took a photograph that slavishly reproduced an oil painting.

Things like Google Book Search were transformative in that a searchable book archive is not the same thing as the books in it. But the Archive wasn't making anything like that; they just wanted to lend books basically as usual. (And note that Google Books is careful not to effectively make scanned, copyrighted books readable in full without permission)

Factor 1 also includes the commercial / nonprofit angle. Commercial uses can be fair uses (many parodies are commercial, for example) but fair use is likelier for nonprofits. Here, the Archive was basically just trying to dodge paying licensing fees, and apparently used the free books as a draw to bring in members who might donate, etc. This was in the nature of a commercial use.

Factor 4 was always going to be bad; there is an existing market for ebooks and for ebooks sold or licensed to libraries, and this threatened to totally upend it. Usually good success on this factor comes from uses for which there is no market and not likely to be one (e.g. quoting sources in school papers, or recording videos off of the tv for delayed viewing (The famous Betamax case did not permit people to make their own libraries of permanent recordings), or spaceshifting music from CDs to mp3 players -- at a time when there wasn't much of an mp3 market.

Note also that the only issue is harm -- if a fair use happens to benefit the copyright holder, that's irrelevant.

As for the idea that a scheme (often suggested by online folks) whereby only one copy could be used at a time, making it just like lending of pre-made copies under the first sale doctrine, would help, it was well known from the ReDigi case 10 years ago that that is meaningless. The law prohibits making new copies and distributing unlawfully made copies. The number of copies floating around isn't relevant.

This was all immediately obvious on day one. I have never for the life of me understood why the Internet Archive wanted to take such a stupid risk, and I hope that it doesn't end up killing useful things like the Wayback Machine.

Ho ho ho. Copyright has been absurdly biased in favor of publishers since at least the 1909 Copyright Act. It's not just because of movie studios and TV networks.