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Appeals Court Declares Internet Archive’s E-Book Lending Not Fair Use, Rules Against It

### The Internet Archive’s Appeal Fails in Major Copyright Case: Consequences for Libraries and Digital Lending

The Internet Archive (IA), a nonprofit organization focused on safeguarding digital content and ensuring universal access to information, has faced a setback in its appeal regarding a crucial copyright case that could significantly affect libraries and digital lending practices. The Second Circuit Court of Appeals has recently supported a lower court’s decision that concluded the IA’s approach to controlled digital lending (CDL) breaches copyright law. This ruling has ignited a vigorous discussion about the future of libraries, the rights of authors and publishers, and public access to digital information.

#### The Lawsuit Against the Internet Archive

The conflict began when leading book publishers filed a lawsuit against the Internet Archive related to its Open Libraries Project, which included digitizing physical books and lending them as digital versions. The IA contended that its CDL system, permitting only one user to borrow each scanned e-book at a time, was equivalent to traditional library lending and constituted “transformative fair use” under copyright regulations. In contrast, the publishers asserted that the IA’s operations were an explicit infringement of their exclusive distribution and licensing rights.

In March 2023, a district court ruled in favor of the publishers, determining that the IA’s digital lending did not meet the criteria for transformative use and therefore lacked fair use protection. The IA pursued an appeal, but the Second Circuit has now endorsed the lower court’s findings, significantly hindering the nonprofit’s mission to offer free digital access to literature.

#### The Court’s Justifications

The appeals court’s ruling relied on several important considerations, including whether the IA’s digital versions of books were transformative, the potential economic harm to publishers, and whether the IA was benefitting financially from its digital lending practices.

1. **Transformative Use**: The court dismissed the IA’s claim that its digital lending constituted transformative use. Judge Beth Robinson, who wrote the opinion, explained that the IA’s digital replicas served the “same exact function as the originals”—making authors’ works accessible for reading. As the digital copies did not introduce “something new” or offer “commentary, criticism, or information about the originals,” the court concluded that the IA’s application was not transformative, weakening its fair use argument.

2. **Market Impact**: The court also evaluated the potential market impact on publishers. The publishers argued that the IA’s digital lending could “undermine the value” of their exclusive rights to create derivative works, such as e-books. The court concurred, pointing out that the IA’s digital versions directly competed with the publishers’ e-books and could result in a loss of income for authors. Although the publishers failed to provide statistical evidence of market harm, the court based its conclusion on “logical inferences.”

3. **Profit Incentive**: Interestingly, the court found in favor of the IA regarding claims that the nonprofit was gaining profit from its digital lending ventures. The appeals court refuted the publishers’ assertions that the IA profited by requesting donations or earning a minimal percentage from used books sold via referral links. Judge Robinson remarked that while the IA needs to raise funds for operation, it does not profit directly from its Free Digital Library, and characterizing it that way would be “misleading.”

#### Consequences for Libraries and Public Access

The court’s ruling carries significant ramifications for libraries, especially as they confront the complexities of digital lending in a progressively digital environment. The decision essentially prohibits the IA from distributing not just the specific works involved in the lawsuit but all books “available for electronic licensing.” This could restrict libraries’ ability to present free digital access to literature, particularly as publishers increasingly adopt licensing frameworks that compel libraries to pay for temporary access to e-books instead of owning them.

Supporters of the IA’s model argue that CDL is an essential resource for libraries to connect with patrons in the digital era, especially in underserved areas where access to physical books may be scarce. Meredith Rose, senior policy counsel for Public Knowledge, criticized the court’s decision, stating that it diminishes the capacity of libraries to fulfill their fundamental role of lending books to the public.

Lia Holland, a campaigns and communications director for Fight for the Future, echoed these concerns, asserting that the ruling delivers a “short-sighted and harmful blow” to libraries, diverse authors, and readers who depend on libraries for information access. Holland also raised issues regarding the privacy risks associated with e-book licensing models, which frequently require users to utilize applications that monitor their reading behaviors.

#### The Outlook for Digital Lending

The court’s verdict has sparked demands for legislative initiatives to safeguard the future of libraries and ensure their continued ability to lend books in the digital era. Rose proposed that the last hope for supporters of the IA may lie in appealing to Congress to revise copyright legislation to clarify the legality of CDL and reaffirm the rights of libraries to lend the books they possess, regardless of their format.

This case also prompts broader inquiries regarding the equilibrium between safeguarding the rights of copyright holders and facilitating public access to information.

Reactions to Generative AI Lead to Departures at Yearly Writing Conference

### The Debate Over NaNoWriMo’s View on AI in Creative Writing

National Novel Writing Month (NaNoWriMo) has been a cherished event within the literary sphere, prompting writers to create a 50,000-word manuscript throughout November. However, the organization recently became embroiled in a contentious discussion following the release of an FAQ that clarified its stance on artificial intelligence (AI) in writing. The declaration, which labeled the outright dismissal of AI writing tools as “classist” and “ableist,” ignited a backlash, resulting in the resignation of four board members and the loss of a sponsor.

### NaNoWriMo’s Stance on AI

In the FAQ, NaNoWriMo maintained that a blanket condemnation of AI would disregard critical issues concerning class and ability. The organization proposed that AI could act as a beneficial resource for individuals who might otherwise need to recruit human writing aides or who have cognitive difficulties that complicate conventional writing.

“We contend that to categorically denounce AI would be to overlook the classist and ableist matters tied to the utilization of this technology,” the FAQ proclaimed. “Inquiries about AI usage connect to discussions about privilege.”

The organization’s position stems from a conviction that AI writing tools can democratize the creative experience, rendering it more attainable for those facing hurdles due to financial limitations or disabilities. For example, some individuals with cognitive disabilities or physical challenges might find AI tools advantageous in articulating their thoughts more clearly or effectively.

### Reactions from Writers

The reaction from the writing community was prompt and predominantly critical. Numerous writers took to social media to express their apprehensions, contending that AI-generated content often depends on extensive amounts of pre-existing text, including copyrighted works, without appropriate recognition or compensation to the original creators. They argue that this raises substantial ethical dilemmas, especially in creative writing contests like NaNoWriMo.

Author Chuck Wendig, recognized for his contributions to the *Star Wars: Aftermath* series, was especially outspoken in his disapproval. “Generative AI benefits not the artist, not the writer, but the tech sector. It appropriates content to recreate content, grave-robbing existing material to stitch together its patchwork concept of art and narrative,” he articulated in a blog entry.

Daniel José Older, a lead story architect for *Star Wars: The High Republic* and one of the board members who stepped down, shared his disappointment on social media. “Hello @NaNoWriMo, this is me DJO officially resigning from your Writers Board and encouraging every writer I know to do the same,” he posted on X (formerly Twitter). “Never use my name in your promotional material again; in fact, don’t mention my name at all and don’t contact me again. Thanks!”

The usage of terms like “classist” and “ableist” in NaNoWriMo’s defense of AI particularly resonated negatively with some critics, including those identifying as disabled. One X user, self-identified as a “poor, disabled and chronically ill writer and artist,” labeled the organization’s viewpoint “ableist and privileged nonsense.”

### NaNoWriMo’s Reaction to the Backlash

In light of the criticism, NaNoWriMo revised its FAQ to further clarify its viewpoint. The organization recognized the ethical dilemmas surrounding AI, especially the actions of “malfeasants in the AI sector who are causing harm to writers and operating unethically.”

“We wish to emphasize that, while we find the all-encompassing condemnation of AI to be problematic for the reasons outlined, we are concerned about specific abuses of AI that contradict our principles,” the updated FAQ stated. “AI encompasses a vast array of technologies, and the breadth and complexity of this category lead us to believe that it is too extensive to either wholly endorse or reject.”

NaNoWriMo also underscored the experiences of disabled individuals who have found AI tools to be empowering. For instance, some writers with disabilities utilize AI to aid in composition when encountering cognitive challenges, enabling them to engage more completely in creative pursuits.

### The Wider Discussion on AI in Creative Domains

The debate surrounding NaNoWriMo’s perspective on AI is part of a larger, ongoing conversation about the role of AI in creative fields. While some assert that AI can democratize creativity by enhancing accessibility, others fear that it undermines the time and effort that artists and writers invest in perfecting their craft.

Opponents of AI in creative writing frequently cite the problem of widespread plagiarism. Generative AI models are generally trained on extensive datasets that contain copyrighted works, raising questions about the ethical ramifications of employing such tools. For many creators, the possibility of AI replacing human ingenuity is profoundly unsettling.

“All these ludicrous appeals from individuals misappropriating social justice terminology stating, ‘but AI allows me to create art when I’m not privileged enough to have the time to cultivate those skills…'”

NASA Confronts Another Significant Human Spaceflight Choice After Starliner Initiative

### NASA’s Artemis II Mission: The Heat Shield Challenge

NASA’s Artemis initiative, which seeks to return humans to the Moon and ultimately facilitate exploration of Mars, is confronted with a crucial choice that could greatly influence its timeline. The dilemma centers on the Orion spacecraft’s heat shield, an essential element engineered to safeguard astronauts during their reentry into Earth’s atmosphere. As NASA gears up for the Artemis II mission, the first crewed lunar flyby since the Apollo era, the agency is faced with the decision to either continue with the current heat shield design or implement modifications that might postpone the mission by several years.

#### The Heat Shield Challenge

Situated at the base of the Orion capsule, the heat shield is tasked with protecting the spacecraft and its crew from the extreme heat produced during reentry. During the uncrewed Artemis I mission in late 2022, Orion journeyed past the Moon and came back to Earth. Although the mission was predominantly a success, the heat shield endured unforeseen damage during reentry. Engineers identified over 100 areas where the heat shield had cracked and eroded, raising alarms about its capability to protect astronauts in future missions.

Considering the importance of the Artemis II mission, which is set to transport four astronauts on a trip around the Moon, NASA has been diligently examining the heat shield issue. The agency assembled an independent review panel to evaluate the circumstances, and after more than a year of discussions, the team has recently completed its assessment. However, the results have yet to be disclosed, leaving NASA to grapple with a challenging decision.

#### The Options Available

NASA effectively has three alternatives for tackling the heat shield challenge:

1. **Proceed with Artemis II Using the Current Heat Shield**: This choice would entail utilizing the same heat shield design that was employed during Artemis I. Nevertheless, to alleviate the risk of damage, NASA engineers are contemplating altering the spacecraft’s reentry trajectory. During Artemis I, Orion adopted a “skip” reentry profile, dipping into the atmosphere, bouncing back into space, and then making a final descent. This method facilitated precise control over the splashdown site and minimized g-forces on the vehicle. For Artemis II, NASA could consider a steeper trajectory, which would decrease the heat shield’s exposure to atmospheric heating, potentially lowering the risk of damage.

2. **Revamp and Reconstruct the Heat Shield**: This option would involve implementing substantial modifications to the heat shield design to rectify the issues identified during Artemis I. While this strategy would likely guarantee astronaut safety, it could also result in a considerable delay to the Artemis II mission, potentially postponing the launch by several years.

3. **Conduct Artemis II Without a Crew**: Another option is to execute the Artemis II mission without astronauts aboard. This approach would enable NASA to test the new life support systems and the heat shield under conditions anticipated during a crewed mission. However, this would also delay the timeline for returning humans to the Moon and could encounter political and financial hurdles.

#### The Importance

The decision confronting NASA is not merely technical; it also carries significant political and financial consequences. The Artemis program represents a high-profile effort, with billions of dollars invested and global attention focused on it. A delay in the Artemis II mission could have cascading effects on the entire initiative, including the timeline for landing humans on the Moon and eventually sending crewed missions to Mars.

Additionally, this choice emerges at a time when NASA’s budget faces scrutiny. Congress has shown a tendency to cut funding for the agency, and any delays or extra expenses related to redesigning the heat shield could encounter opposition from lawmakers.

#### What Lies Ahead

NASA officials have been relatively reserved regarding the heat shield issue, with senior leadership suggesting that a final decision has yet to be reached. The findings from the independent review team are anticipated to be pivotal in shaping the agency’s next steps. However, due to the complexity of the matter and the potential implications of each option, NASA may deliberate before making an official announcement.

Meanwhile, the Orion spacecraft has gone through thermal and vacuum testing in anticipation of Artemis II. The spacecraft was initially set to be assembled onto the Space Launch System (SLS) rocket this month, but NASA has postponed this process until there is clarity regarding the heat shield situation.

#### Conclusion

The decision facing NASA concerning the Orion spacecraft’s heat shield is one of the most significant challenges the agency has confronted in recent times. With the Artemis II mission poised to be humanity’s first deep space endeavor in over fifty years, the stakes are exceedingly high. Whether NASA opts to proceed with the existing heat shield, redesign it, or execute the mission without a crew, the implications will be far-reaching for the future of human space exploration.

As the world awaits NASA’s choice, one truth remains evident: the journey to the Moon and beyond is laden with challenges, and the manner in which NASA addresses this dilemma will mark a pivotal moment for