A library lends out books so that its patrons can read them for free, without any extra payment to the publisher beyond the purchase price of the book.
Gregory Hart felt that the internet could work the same way. On his website, HTMLComics.com, Hart posted entire issues of comics for the public to read. He claimed that this did not infringe on anyone's copyright because his site was simply a virtual library, allowing users to read the books online but not download them to keep. In fact, Hart was so confident of his theory that he dared comics publishers to sue him so the courts could settle the matter.
This week, Hart got his wish: On April 20, the FBI executed a search warrant and confiscated Hart's servers, and on May 27, the U.S. Department of Justice filed a lawsuit against him, charging that he violated federal copyright laws.
While HTMLComics.com is now offline, another of Hart's sites, LibraryLaw.com, is still up and contains his arguments as to why posting comics on the net is perfectly legal. He maintains that HTMLComics.com is "a public resource for reading material, hence a 'Library.'" Like a library, he said, the site provides reading material to the public for free but does not allow people to keep the books, because the site is set up not to allow users to download the materials (although numerous people have stated that in fact they did so).
Not so, says attorney Michael Lovitz of the law firm BuchalterNemer. Libraries are allowed to lend out books under something called the "first sale doctrine" of copyright law, which says that once a copy of a work has been legally purchased, the copyright owner has no further control of its distribution. "Thus, a library which acquires (by purchase or gift) various works can then lend them (or even re-sell them, which libraries do from time to time)," Lovitz told CBR News.
But that's not what Hart did. He made or acquired electronic copies of the comics and posted them online for multiple people to read at once.
"First, by creating the electronic copy, he infringed the right to reproduce and the right to create a derivative work," Lovitz said.Â "Nothing in the statute would appear to permit this (although libraries are permitted to make an archival copy under certain circumstances)."
"Second, and more importantly, unlike a library where only one person at a time can borrow the book, the HTMLComics 'library' would allow an infinite number of people to 'borrow' a particular comic book issue simultaneously. Â Since libraries can only lend as many copies as it may have purchased (or received by donation), it seems unlikely he purchased enough copies for even two people to read at the same time."
In fact, many of the comics on the site were not purchased by Hart at all. According to the Associated Press account of the lawsuit, Hart told lawyers for Marvel Comics that he used digital comics that had been scanned by other people and sent to him. Hart, or someone posting under the name HTMLComics.com, went on the forums of Demonoid, a Bittorrent site, asking users to send him scans of comics, often asking for particular titles to complete a series.
The process of posting the comics online, which started with unauthorized copies, also involved the creation of even more unauthorized copies, Lovitz said.
"By converting the comics to electronic forms, Mr. Hart [or whoever scanned the comics] engaged in unauthorized reproduction and unauthorized creation of a derivative work," he said. "Further, by allowing access via the Internet, those unauthorized reproductions were distributed through numerous servers, each making a copy of his (unauthorized) electronic copy. Then those (unauthorized) copies were displayed on computer screens. Â Each of these steps are infringements of the remaining rights in the copyright owner's arsenal."
In other words, Hart could be looking at a lot of copyright infringement charges, if the lawyers choose to go that route.
On his LibraryLaw site, Hart placed great emphasis on the fact that he made no money from HTMLComics.com, which charged no fee, did not require readers to sign in and carried no advertising. Hart added:
The laws of the United States support our position and our usage and creation of a library, and; because we don't require membership nor does our library incur fees for late returns of rented literature, our library is a more pure form of non-profit than is a community public library, or even the Library of Congress. Â To this extent, it isn't possible to make a donation to our library, hence there are zero dollars transacted.
Hart was essentially arguing that his site was legal because it was "fair use," which is permitted under copyright law, but fair use does not hinge only on the question of money.Â "The statute states there are factors to be considered by a court in making a 'fair use' determination, including (1) 'the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,'" Lovitz said. "Thus, if he argues that his posting was for a nonprofit purpose, he can claim that the first 'fair use' factor weighs in his favor."
However, that is only one of four conditions that he must meet to be considered fair use. "For this project, the more important question is the amount of the taking and whether he took more than he needed to take (which he clearly did)," Lovitz said.
Hart not only maintained that his site was legal, he was aggressive in his defense of it. On May 12, 2009, a user named htmlComic posted on the forums of Demonoid.com, pointing readers to HTMLComics.com and going on to say:
The website has been up for about 8 months now, and; after extensive initial contact with DC and Marvel legal departments (along with many other publishing companies' legal departments) during its first 2 months, there has been no response within the past 6 months from any of them. We asked each of them if they felt there was valid infringement, to please file civil proceedings against our company so that the matter could be reviewed before the courts, and none has followed through with our request.
Creators Harlan Ellison and Colleen Doran have both stated publicly that Hart responded aggressively to their requests to stop posting his work. On May 5, Ellison posted this on his bulletin board:
When we advised him to cease and desist, he essentially told me to go fuck myself, and urged me to sue him. Just like every one of them, all the way back to my AOL suit, he told me he couldn't be found, he was impregnable, I could go fuck myself.
Doran reported a similar response on her blog:
When I very politely asked him to remove my comics from his website, he sent me a belligerent letter and threatened to lawyer me into oblivion:
"...we'll see you in court and we'll be the ones cashing your compensatory damages check."
He bragged about how much he loved battling with lawyers...and about how much money he had.
Despite this exchange, Hart did eventually remove Doran's materials from his website.
Despite Hart's feisty defense of his theory, he had already been informed that it was flawed. In March 2009, he posted a description of his site at FindLaw Answers, asking for specific laws and precedents that would support his argument. The exchange there highlights what Hart may have been after: "The end objective is to create an online library, of EVERY book that has EVER been published," he said, adding, "By taking on the most aggressive adversary, the comic book companies, and by confirming that my approach is in fact the definition of a library, I will be able to move on to the next level."
Instead, everyone who responded told him that he was wrong and that he should consult a lawyer before going any further. "Calling yourself a "library" doesn't make it so," responded one poster. "You'd best get to an attorney ASAP.Â As far as I can see you are the verge of being sued and you have no legal defense."
The copyright statute allows publishers to recover damages of up to $30,000 for copyright infringement, but it also allows the court to reduce those damages to $200 in a case where the infringer "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright." Hart's aggressive defense of his theory suggests that he truly believed it was correct, but informed legal opinion seems to be that he will not be vindicated by the court.