Copyright: Publishers, Internet Archive File Court Proposal

In Feature Articles by Porter Anderson

A proposed judgment bars Internet Archive from of offering ‘unauthorized copies’ of book publishers’ copyrighted content inside and outside the United States.

In Washington, DC. Image – Getty iStockphoto: Mindaugas Dulinskas

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

See also: Copyright: US Court Rules Against Internet Archive

A Confidential Monetary Payment and Permanent Injunction
This afternoon (August 11), the Association of American Publishers is confirming to Publishing Perspectives that the publisher-plaintiffs in the June 2020 lawsuit of the Internet Archive have submitted to the US District Court in the Southern District of New York a joint, negotiated proposal for Judge John G. Koeltl’s consideration.

As our readers will remember, the plaintiffs—Hachette Book Group; HarperCollins Publishers; John Wiley & Sons; and Penguin Random House—received on March 24 an adamant ruling against the Internet Archive for its “Open Library” lending activities. In that ruling, the court deemed Internet Archive as liable for copyright infringement.

Today’s proposed consent judgment provides for a “stipulated permanent injunction,” according to the AAP’s media messaging, “preventing Internet Archive from offering unauthorized copies of the plaintiffs’ books to the global public under the manufactured theory of ‘controlled digital lending,’ and indicates that the parties have reached a confidential agreement on a monetary payment, all subject to Internet Archive’s right to appeal the case.”

What this proposal does is present to Judge Koeltl an agreed-on arrangement that would—if accepted by the court—stand in lieu of further court proceedings. It’s good to remember that the points of the proposal are “all subject to the outcome of any final appeals.”

Of paramount significance: the jointly proposed consent judgment includes, as the AAP describes it, “a court declaration that the Internet Archive’s activities in engaging in ‘controlled digital lending’ of the works in suit—exercised through its digital distribution businesses including Open Library—constitute copyright infringement.  The activities of the Internet Archive in engaging in the ‘National Emergency Library’ in connection with these works also constitute copyright infringement.”

In other words, there’s no avoidance of a statement of culpability here. The joint proposal is actually seated on the court declaration of copyright infringement.

Protecting ‘Hundreds of Thousands of Literary Works’

Discussion provided to us this afternoon points out that the proposed consent judgment “offers the plaintiffs injunctive relief that is appropriately broad. It bars Internet Archive from continuing its infringing activities not only within the United States but also from or into the United States.”

We quote here several points broken out for the news media by the Association of American Publishers with specific prohibitions contained in the proposed consent judgment. The Internet Archive, its officers, agents, servants, employees, and attorneys, are prohibited from engaging in any of the following:

  • “Distributing, displaying, or otherwise making covered books available to the public without authorization from the copyright owners.
  • “Reproducing covered books for the purpose of making them available to the public, including through unauthorized public distribution and display.
  • “Creating derivative works, including ebook formats, of covered books without authorization.
  • “Inducing, or knowingly and materially contributing to, any individual or entity’s infringing reproduction or activities to make covered books available to the public without authorization in any digital or electronic form, as those terms are used in the law of contributory copyright infringement–which means the Internet Archive must discontinue its long-standing campaign of encouraging public libraries to adopt and implement “controlled digital lending.”
  • ” Profiting from another individual or entity’s infringing reproduction, public distribution, public display or public performance of covered books.”

The plaintiffs in the case, for which the AAP is communicating to the news media, also state, “Further, subject to its right to appeal the decision and any of the injunctions, the Internet Archive will apply the terms of the permanent injunction to plaintiffs’ full book catalogues representing hundreds of thousands of literary works that go well beyond the 127 representative works identified in the lawsuit.”

As for the unspecified amount of the monetary agreement contained in the proposed consent judgment, the AAP writes, “Plaintiffs brought this case to defend and affirm a set of legal principles that are both well-established and absolutely essential to publishing in an online, borderless economy—and with the expectation that both Internet Archive and other actors will be deterred from future infringements.

“Therefore, in addition to injunctive relief, the parties have entered into a confidential agreement for a monetary judgment payment, to be paid by Internet Archive at the final conclusion of the case if the publishers prevail on appeal. While the sum is confidential, AAP’s significant attorney’s fees and costs in the action since 2020 have been substantially compensated by the monetary judgment payment.”

What’s more, protection has been built in for all the publisher-members of the Association of American Publishers, not just for the group of four plaintiff-houses. A side agreement forms “a structure that will motivate the Internet Archive to apply the negotiated injunction in the consent judgment to the book catalogs of all [emphasis theirs] of AAP member companies. AAP looks forward to working with its member-publishers and the Internet Archive so that all AAP member books are no longer distributed by Internet Archive under ‘controlled digital lending.’

Maria A. Pallante: ‘The Feeding and Training of Machines’

In communications with this reporter and others this afternoon, the Association of American Publishers’ president and CEO, Maria A. Pallante, details how and why the negotiated proposed consent judgment satisfies the publisher-plaintiffs and the overall publishing community’s need for protection for what the court ruling in March designated as copyright-infringing activity.

We want to bring you Pallante’s commentary in full today, for its value in illuminating the nature of the proposed consent judgment and its wider implications. You’ll note, for example, that at one point, she takes the fundamental principles of this court action into the artificial intelligence arena, referring to “the feeding and training of machines.”

Pallante is writing here on behalf of the plaintiffs and of the board of directors of the association:

“This comprehensive proposed consent judgment—made possible by the district court’s unequivocal infringement finding—underscores the public purpose of copyright law and the well-established rights of authors and publishers to license and communicate their works to readers through a variety of formats and delivery models.

Maria A. Pallante

“As the court has so clearly reinforced, infringement serves only the infringer, not the public. Copyright protection, on the other hand, incentivizes new works of authorship and the public’s lawful access to them. The Supreme Court made this very point in Eldred v. Ashcroft in 2003, holding, ‘Copyright law serves public ends by providing individuals with an incentive to pursue private ones.’

“To this end, we are extremely pleased to have secured broad injunctive relief in the proposed consent judgment, which will extend not only to the plaintiffs’ 127 works in the lawsuit but also to thousands of other literary works in their catalogues representing countless other authors.

“Further, we’re pleased to announce that the Association of American Publishers and Internet Archive have executed an ancillary agreement that goes beyond the four corners of the lawsuit, to motivate Internet Archive to apply the injunction in the consent judgment to all of the AAP’s member companies affected by the Internet Archive’s infringement, creating an efficient resolution for these aggrieved rights holders.

“Looking ahead, we note that enforceable copyrights have never been more important as policymakers and courts around the world grapple with how to regulate the rapidly evolving use of artificial intelligence. If we hope to discern the deployment of misinformation, the authenticity of viewpoints, and countless other threats to a stable and secure society in this new era, it seems clear that we will need experienced and dedicated authors and a sustainable publishing industry to keep the public informed.

“Further, as a nation of laws, we should agree that the source of supply matters when it comes to the feeding and training of machines, meaning that no corpus of creative works that is assembled or proffered through acts of infringement should be ethically tolerated in the business chain or legally permitted.

“The Association of American Publishers thanks the four publishing houses in this case for their unwavering commitment to justice, and for combatting the scourge of digital piracy that damages the livelihoods of so many creators. We hope the extensive analysis of the court and serious nature of the stipulated judgment will discourage other actors who refuse to account to copyright owners and the law.”

Background coverage:

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.

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 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.