‘The publishers have established a prima facie case of copyright infringement’ against the Internet Archive, the judge writes.

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

Pallante: ‘Unequivocal Affirmation of the Copyright Act’

Friday evening’s adamant ruling against the Internet Archive for its “Open Library” lending is a major win for authors as well as publishers, and for workers in associated creative industries who have watched the case closely for the better part of three years.

“The publishers have established a prima facie case of copyright infringement,” writes Judge John G. Koeltl of the United States district court in the Southern District of New York in his 47-page decision, which includes a firm rebuke to the controversial concept of “controlled digital lending.”

Near his decision’s conclusion, Koeltl writes, “Internet Archive cannot offset the harm it inflicts on the publishers’ library ebook revenues … by pointing to other asserted benefits to the publishers in other markets. Nor could those asserted benefits tip the scales in favor of fair use when the other factors point so strongly against fair use.”

In that regard, Koeltl writes that the “Internet Archive’s fair-use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book. But no case or legal principle supports that notion. Every authority points [in] the other direction.”

In granting the publishers’ motion for summary judgement—and denying the Internet Archive’s motion—the court moved with a speed not always seen in the American judicial system: oral arguments had been heard on Monday (March 20), and here was a decision late Friday of the same week. This is a lawsuit originally filed on June 1, 2020.

Forcefully countering the Internet Archive’s reliance on its interpretations of fair use, Koeltl writes, “Internet Archive’s wholesale copying and unauthorized lending of digital copies of the publishers’ print books does not transform the use of the books, and Internet Archive profits from exploiting the copyrighted material without paying the customary price.”

The “transformative” factor in recognized fair-use doctrine, Koeltl later explains, is a key to his analysis. He quotes case law which demonstrates that “Transformative works lie at the heart of the fair-use doctrine, and a use of copyrighted material that merely repackages or republishes the original is unlikely to be deemed a fair use.” There is, Koeltl writes, “nothing transformative about Internet Archive’s copying and unauthorized lending of the works” listed in the lawsuit.

The four plaintiff-publishers in Hachette Book Group et al v. Internet Archive et al are:

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

Rasenberger: ‘A Legally Absurd Theory of Fair Use’

Maria A. Pallante, president and CEO of the Association of American Publishers and a former director of the United States’ Copyright Office, has issued a weekend statement on the court’s decision, saying, “The publishing community is grateful to the court for its unequivocal affirmation of the United States Copyright Act and respect for established precedent.

“In rejecting arguments that would have pushed fair use to illogical markers, the court has underscored the importance of authors, publishers, and creative markets in a global society.

“In celebrating the opinion, we also thank the thousands of public libraries across the country that serve their communities every day through lawful ebook licenses. We hope the opinion will prove educational to the defendant and anyone else who finds public laws inconvenient to their own interests.”

Under Pallante’s direction, the association and its member publishers have had a string of court-case successes, many of which, she has pointed out, are based in state-level challenges to the national scope and federal jurisdiction of the United States Copyright Law. This one has the distinction of holding not only national but also international significance because it’s seated in the world-spanning reach of the Internet.

And speaking for the New York-based Authors Guild, the United States’ largest author-advocacy organization, CEO Mary Rasenberger—herself a former policy planning advisor to the US Copyright Office—says, “As we have long argued, scanning and lending books without permission or compensation is not fair use—it is theft, and it devalues authors’ works. Our arguments have been vindicated in court. This is a resounding win not just for publishers but authors.

“Internet Archive tried to justify its illegal creation and distribution of ebooks under a legally absurd theory of fair use. Judge Koeltl saw through their rhetoric and false comparisons.

“Throughout the years, Internet Archive has shown a shocking disrespect to authors’ calls for it to stop the illegal scanning and distribution of their books. The Authors Guild approached Internet archive years ago to create a license for books used on Open Library, but Internet Archive refused to engage with us—after falsely claiming that they respected author’s’ rights and reporting they had set aside a whopping .0004 percent of the budget to pay to acquire books they would digitize and distribute to the whole world in competition with the authors and publishers. …

“Let us be very clear: authors love libraries. Libraries don’t steal books—they support authors by buying books legally, and licensing the digital works. Library licensing generates income that authors desperately need, with the typical author receiving 25 percent of the license.”

Rasenberger’s assertion that “authors love libraries” reflects on the fundamental tack the Internet Archive has taken—a claim that the plaintiff-publishers’ lawsuit is “a blow to all libraries.”

Kahle: ‘We Plan To Appeal It’

In a statement uploaded to the Internet Archive’s blog site this weekend, Chris Freeland, director of “open libraries” at the company, writes that the court’s decision “is a blow to all libraries and the communities we serve. This decision impacts libraries across the United States who rely on controlled digital lending to connect their patrons with books online. It hurts authors by saying that unfair licensing models are the only way their books can be read online. And it holds back access to information in the digital age, harming all readers, everywhere.

“But it’s not over,” Freeland continues. “We will keep fighting for the traditional right of libraries to own, lend, and preserve books. We will be appealing the judgment and encourage everyone to come together as a community to support libraries against this attack by corporate publishers.”

Freeland includes a statement from Brewster Kahle, the Internet Archive founder, who says, “Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society—owning, preserving, and lending books.

“This ruling is a blow for libraries, readers, and authors and we plan to appeal it.”

International Implications

The March 24 decision from Judge Koeltl—written with extensive explanation about digital-content licensing between publishers and libraries—includes several data points that reflect the sheer breadth of protection provided to authors and their publishers by copyright in the context of library lending. Several examples:

• “In 2012, OverDrive, the  largest aggregator, processed 70 million digital checkouts of ebooks and audiobooks; by 2020, that number had risen to 430  million.” [As world publishing industry players know, a so-called “digital acceleration” in terms of consumers’ adoption of digital formats was widely observed in many parts of the world during the 2020 advent of the coronavirus COVID-19 pandemic. This is likely to have contributed to the growth of those checkouts cited by OverDrive.]
• “Library ebook licenses generate around US$59 million per year for Penguin.”
• “Between 2015 and 2020, HarperCollins earned  US$46.91 million from the American library ebook market.”

While the four plaintiff-publishers based their case on 127 titles, Judge Koeltl writes in his decision, “Over the past decade, Internet Archive has scanned millions of print books and made the resulting ebooks publicly available on its archive.org and openlibrary.org” sites. … Internet Archive’s online presence, he writes, “includes millions of public domain books that users can download for free and read without restrictions.

“Relevant to this action, however,” Koeltl writes, the Internet Archive’s sites “also include 3.6 million books protected by valid copyrights, including 33,000 of the [plaintiff-] publishers’ titles and all of the works in suit,” those 127 specifically named in the lawsuit’s complaint.

Obviously, the Web-based offer of the Internet Archive “Open Library” program means that there are no boundaries, geopolitical or otherwise, to the availability of the copyrighted texts. Users can internationally gain access to those copyrighted books in their digital formats without the works’ publishers’ or authors’ permission, thus taking advantage of what Koeltl has determined is a copyright infringement.

“The publishers  did not authorize Internet Archive to create digital copies of the works” in the lawsuit, Koeltl writes, “or to distribute those unauthorized ebook editions” on the Internet Archive’s sites.

And from the key world body of world publishing, the International Publishers Association (IPA) in Geneva, the message is one of encouragement and appreciation for news of the court’s decision.

“Given the enormous significance of the case to the global publishing industry, ” says IPA secretary-general José Borghino, “the IPA is deeply heartened by the comprehensive judgement of the US court.

“Its firm backing of basic copyright principles is particularly comforting, which IPA affirmed in its amicus brief to the court, along with additional concerns about the United States’ treaty obligations to uphold copyright protections on the Internet.”

Many readers in our international professional subscriber base may not have followed this case in detail because both the Internet Archive and the pertinent divisions of the plaintiff-publishers are based in the United States.

As Borghino says, the International Publishers Association last August  asserted the “global significance” of the case, leading a group of its peer-organizations to sign an amicus brief, flagging the importance of “United States compliance with its obligations under international copyright and related rights treaties.” That group of 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

You can see both Rasenberger and Pallante indicating in their statements the reach of the Internet Archive’s program’s distribution of copyrighted content. It encompasses, potentially, “the whole world” of readers, in Rasenberger’s phrase, without paying the required licensing fees that the court now is upholding under the United States Copyright Act.”

The International Publishers Association last summer captured the example this case has presented to the world book business of how internationally influential copyright protections become in a digital era, based as they are on international treaties.

“If United States law,” the IPA’s statement wrote, “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.”

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‘Copyright in a Global Context: Current Threats and Emerging Issues’

A programming note: On April 18, 2:30 to 3:15 p.m. BST, Publishing Perspectives will moderate a special look at international copyright issues on London Book Fair’s Main Stage on its opening day. ‘Copyright in a Global Context’ will explore how copyright laws and intellectual property rights vary in different countries. How is the legislation changing across the world, with legal challenges on different continents? What are the expectations of the industry? What can the industry do to encourage free expression and copyright? “Copyright exhaustion”: what does it mean for the industry? Topics explored will range from intellectual property framework copyright agreements in a post-Brexit Britain to new regulations currently impacting South Africa and the region. Speakers:

• Dan Conway, CEO, Publishers Association
• Brian Wafawarowa, president, Publishers Association South Africa
• Maria A. Pallante, president and CEO,  Association of American Publishers (AAP)
• Isobel Dixon, president, Association of Authors’ Agents (AAA)
• Chaired by: Porter Anderson, editor-in-chief, Publishing Perspectives

See also:

• IPA’s Amicus Brief: ‘Global Significance’ in the Internet Archive Lawsuit
• Copyright: American Publishers File for Summary Judgment Against the Internet Archive
• Internet Archive Responds to Publishers’ Copyright Lawsuit
• AAP Member-Publishers File Copyright Infringement Suit Against Internet Archive
• US Senate IP Chief Questions Internet Archive’s ‘National Emergency Library’
  
• Authors Guild and Society of Authors Allege Copyright Infringement by the Internet Archive

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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.