Copyright Update: Internet Archive Injunction Leaves Some Concerns

In News by Porter Anderson

The proposed consent judgment in publishers’ Internet Archive lawsuit is made permanent but some are concerned about a limitation.

Image – Getty iStockphoto: Alex Corv

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

See also: Copyright: Publishers, Internet Archive File Court Proposal

AAP: ‘Systematic Format-Shifting Is Infringement’
You’ll remember that on Friday (August 11), the Association of American Publishers submitted to the US District Court in the Southern District of New York a joint proposed consent judgment negotiated with the Internet Archive for Judge John G. Koeltl’s consideration. Our coverage of that stage in the process—in which four major publishing plaintiffs sued the Internet Archive for engaging in ‘controlled digital lending’ of copyrighted works—is here.

Judge Koeltl needed very little time, it turns out, to approve that proposed permanent injunction. And this, as Publishers’ Lunch’s Michael Cader writes that approval “means the imposition of the injunction—and the bringing down of illegal ebooks—will commence shortly.”

While there has been some concern in industry discussion today (August 15) about Koeltl ruling that the injunction covers only books that have ebook editions available, the AAP’s president and CEO Maria A. Pallante is writing in a follow-up note:

“We respect the Court’s August 14 ruling as to the scope of the injunction, and we do not believe that it even remotely suggests that the Internet Archive is free to usurp a publisher’s future markets where ebooks do not currently exist.

“On the question of applying the permanent injunction to the full catalogues of the four plaintiffs [Hachette Book Group; HarperCollins Publishers; John Wiley & Sons; and Penguin Random House], the court’s ruling today will have a very minimal impact.  The overwhelming majority of the tens of thousands of books that plaintiffs make available in print are also commercially available from them as authorized ebooks. Nor are the plaintiffs precluded going forward from enforcing under the US Copyright Act the small percentage of works that may not be covered by the injunction.

Maria A. Pallante

“Similarly, with respect to the AAP side agreement, we are not precluded from going beyond the injunction to assist our broader membership remove books that may not be commercially available as ebooks at this time.

“If the Internet Archive chooses to refuse, it will do so at its own risk under judicial determinations that have been clear that systematic format-shifting is infringement.

“As the March opinion states, ebooks are paradigmatic examples of derivative works. It is common sense that copyright owners do not have to race to create an ebook or any other valuable delivery option for fear that their legally vested rights will be overtaken by an infringer who acts first. That is not how copyright law works.

“It’s not a race to publication between those that create and finance literary works and those that appropriate them.”

Authors Guild: ‘Definitely Disappointing’

At the Authors Guild, CEO Mary Rasenberger’s statement is less sanguine on the question of Judge Koeltl’s limitation.

“The judge’s decision to limit the injunction to books currently available in electronic form,” Rasenberger writes, “is definitely disappointing, as it leaves authors who have not yet made their book available as ebooks in the cold. This includes older books that may be out of print but that the author is planning to republish, as well as books that the author for any number of reasons does not want made available as ebooks.

“It defies copyright law,” she writes in a statement forwarded to Publishing Perspectives, “by implicitly condoning the republication of works in formats other than what the author has chosen to make available. I don’t think the court meant to signal that, but it is the effect.

Mary Rasenberger

“It mostly impacts self-published books that are available in print only (not uncommon), as well as older, out-of-print books [in which] rights have reverted to the author. It buys into the notion put forward by the ‘controlled digital lending’ theory that Open Library relied on that there is no value in older out-of-print works and ignores the fact that authors often republish their out-of-print books, allowing infringers to usurp the market for ebooks before they have a chance to do so. …

“Self-publishing,” Rasenberger writes, “is a huge part of the market now, and traditionally published authors get their rights back and these days very often republish their books or repurpose them. Most authors are always looking for new sources of income, and their older out-of-print books often have a great deal of value to them. Although the potential market for these older books may not be big enough for the original publisher to want to invest in keeping [a] book, authors do earn hundreds or thousands of dollars from their formerly out-of-print books that they republish. That is meaningful income for most authors when the mean full-time author’s writing earnings are just US$20,300.

“Making those books available free on the open Internet through Open Library or any library under the ‘controlled digital lending theory’ destroys the potential markets for those books–precisely because they are so small. We wrote about this in our amicus brief in the case.

“The decision on the merits stands, however, and it makes very clear that digitizing and posting any books on Open Library without permission is infringing, and we will assist authors in getting their books off of Open Library. The uncovered books are in at least the tens of thousands.”

Another Suit of the Internet Archive: Music

The Internet Archive is facing another lawsuit–not in book publishing but again in the Southern District of New York, this one from plaintiffs UMG Recordings, Capitol Records, Concord Bicycle Assets, CMGI Recorded Music Assets, Sony Music, and Arista Music–all alleging copyright infringement by the Internet Archive, as reported by Althea Legaspi at Rolling Stone.

The suit targets the Internet Archive’s “Great 78 Project” of almost 2,750 recordings from before 1972. Legaspi’s write-up has the suit’s statutory damages potentially exceeding US$412 million “along with attorneys’ fees as well as injunctive and further relief determined by the court.”

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.

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.