IPA’s Amicus Brief: ‘Global Significance’ in the Internet Archive Lawsuit

In Feature Articles by Porter Anderson

As another court date in the Internet Archive lawsuit approaches this week, the International Publishers Association has led an amicus brief.

Image – Getty iStockphoto: Cobourn

By Porter Anderson, Editor-in-Chief | @Porter_Anderson

 Books ‘Available Internationally … Without Authorization’
On Friday (September 2), the Association of American Publishers (AAP) is expected to file an opposition brief to the Internet Archive‘s motion for summary judgment. It’s anticipated that the Internet Archive will file an opposition brief of its own to AAP’s motion for the same, summary judgment. A “summary judgment” is a way for one party to win a case without a trial. Essentially, each of the two parties is trying to bring the litigation to a close on what it asserts are the merits for its argument.

As Publishing Perspectives readers will remember, four primary member-publishers of the Association of American Publishers filed that first motion for summary judgment against the Internet Archive in a case understood to have international implications because of the reach of Internet connectivity. A “summary judgment” is a way for one party to win a case without a trial.

The original court action was brought against the Internet Archive in June 2020, when the publishers, three of them among the Big Five, filed a copyright infringement lawsuit against the Internet Archive, in the US District Court for the Southern District of New York.

Those plaintiff-publishers:

  • Hachette Book Group
  • HarperCollins Publishers
  • John Wiley & Sons
  • Penguin Random House

And the core complaint of this court action: The 2020 lawsuit asked the court to enjoin the San Francisco-based Internet Archive’s “scanning, public display, and distribution of entire literary works”—which it has offered to the international public through what the association terms “global-facing businesses” branded the “Open Library” and “National Emergency Library.”

In the interim—between the summary judgment filings this summer and now—the International Publishers Association (IPA) on August 11 led a cohort of rights-holder organizations in filing an amicus brief with the court in support of the four publishers. And what the participation of the IPA does—with its 89 member-organizations from 73 countries in Africa, Asia, Australasia, Europe, and the Americas—is demonstrate with bright clarity that “This is not just a local US matter, it is of global significance.”

As the international association based in Geneva goes on to lay out, “Many of the books that the Internet Archive scans and distributes without permission were written and published outside the United States—in Europe and elsewhere.

“And more importantly, this is a test case which will determine how far entities like the Internet Archive can go in digitizing and distributing published content without permission from, or remuneration to publishers and creators. It was therefore appropriate and essential that the IPA supported the publishers in this case.”

José Borghino, secretary-general of the International Publishers Association, says, “The works available on the Internet Archive come from publishers around the world and are made available internationally.

José Borghino

“They have been digitized and made available anywhere, without authorization by the affected international publishers.

“Such conduct shows no respect for the creators behind these works nor for international copyright treaties, and we expect the court to recognize this.”

In order to put forward its amicus brief, the IPA brought together these co-signatories:

  • Federation of European Publishers
  • International Association of STM Publishers
  • International Confederation of Societies of Authors and Composers
  • International Video Federation
  • International Federation of Film Producers Associations
  • International Federation of the Phonographic Industry

And in the 27-page amicus brief filed on August we read, in part, these lines:

“In this brief, the amici [signatories] focus on the need to ensure United States compliance with its obligations under international copyright and related rights treaties. These treaties establish certain exclusive rights for rights holders including, inter alia, rights of reproduction, distribution, and making available. The rationale behind the granting of those rights comports fully with the rationale for copyright protection under the United States Constitution.

“If United States law is now perceived to allow businesses like Internet Archive to function without restraint, or as unreliable and inconsistent with relevant international law, this spillover problem will be global, massive, and potentially irreversible.”Amicus Brief in 'Hachette et al v. Internet Archive'

“These international treaties also establish limits on the permissible scope of limitations and exceptions to those exclusive rights. As a result of its international treaty obligations, the United States has an obligation to ensure that rights holders whose rights are violated by unauthorized uses of their protected works have an effective means of enforcing such rights. Any defenses put forward to justify such uses must survive scrutiny under international norms.

“Internet Archive’s purported ‘lending’ of ebooks squarely infringes exclusive rights of the plaintiffs defined and set out in international copyright law. The facts relied on by Internet Archive in support of a defense of ‘fair use’ to justify such infringement, including its contrived system of ‘controlled digital lending,’ do not meet the minimum standard for protection as defined by international treaties.

“United States courts are required to apply the defense of ‘fair use’ in a manner that satisfies the required standards established by international copyright and related rights treaties … and any exception that purports to enable Internet Archive’s copying and making available of protected ebooks worldwide on an immense scale fails to do so. The international copyright and related rights framework prohibits the United States from establishing exceptions to exclusive rights that do not meet those standards. ”

“Internet Archive’s conduct raises two major concerns for international rights holders:

“First, the ability to enforce their rights effectively and protect them from being infringed on an unprecedented scale in the United States. A decision in favor of Internet Archive would severely limit the practical ability of rights holders, such as the amici [signatories to this brief], to enforce their rights effectively against an Internet platform engaged in unauthorized copying and dissemination of protected works on an industrial scale and thereby threaten to place the United States in breach of its international obligations and responsibilities.

“Second, the potential spillover effect that a decision in favor of Internet Archive could have for enforcement of copyright and related rights outside the United States. Rights holders have always faced the problem of pursuing counterfeit or infringing copies produced in countries with lax copyright enforcement practices that cross borders and infiltrate markets in other countries. If United States law is now perceived to allow businesses like Internet Archive to function without restraint, or as unreliable and inconsistent with relevant international law, this spillover problem will be global, massive, and potentially irreversible.”

More from Publishing Perspectives on copyright is here, more on ‘controlled digital lending’ is here, more on the Internet Archive is here, more on the Association of American Publishers is here, and more on the International Publishers Association is here.

Publishing Perspectives is the International Publishers Association’s global media partner.

More from us on the coronavirus COVID-19 pandemic and its impact on international book publishing is here

About the Author

Porter Anderson

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Porter Anderson has been named International Trade Press Journalist of the Year in London Book Fair's International Excellence Awards. He is Editor-in-Chief of Publishing Perspectives. He formerly was Associate Editor for The FutureBook at London's The Bookseller. Anderson was for more than a decade a senior producer and anchor with CNN.com, CNN International, and CNN USA. As an arts critic (Fellow, National Critics Institute), he was with The Village Voice, the Dallas Times Herald, and the Tampa Tribune, now the Tampa Bay Times. He co-founded The Hot Sheet, a newsletter for authors, which now is owned and operated by Jane Friedman.