US Publishers File Brief Opposing Internet Archive’s Appeal

In Feature Articles by Porter Anderson

Almost a year after their court victory, four major publishers file a brief opposing the Internet Archive’s appeal of the case it lost in March 2023.

Image – Getty iStockphoto: Alessandro Malerba

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

‘Copyright, Not Infringement, Serves the Public Interest’
On Friday (March 15),  four major publishers—Hachette Book Group, HarperCollins Publishers, Penguin Random House, and Wiley—filed a brief that opposes the Internet Archive‘s appeal of its loss on March 24, 2023, in the copyright case Hachette Book Group, et al, v. Internet Archive.

The original lawsuit was filed by the publishers in June 2020 and argued that the Internet Archive had digitized “millions of print books and [distributed] the resulting bootleg ebooks free of charge from its site, without the consent of the publishers and their authors or the payment of any license fee.”

In his grand of summary judgment of almost a year ago, the judge, John G. Koeltl of the United States district court in the Southern District of New York, wrote, “The publishers have established a prima facie case of copyright infringement,” and his opinion included a firm rebuke to the controversial concept of “controlled digital lending.”

Nevertheless, the Internet Archive made good on its promise to appeal, arguing that Judge Koeltl didn’t understand the facts of the case and was wrong in his decision.

Terrence Hart

Reacting to the Internet Archive’s appeal, Terrence Hart, general counsel with the Association of American Publishers, wrote in September, “The publisher plaintiffs and AAP community stand behind the district court’s clear opinion in this case, establishing that the Internet Archive’s industrial-scale format-shifting activities constitute copyright infringement, consistent with ample other precedent that defines the clear boundaries of fair use and first sale provisions.

“There is simply no legal support for the notion that Internet Archive or a library may convert millions of ebooks from print books for public distribution without the consent of, or compensation to, the authors and publishers.

“The plaintiff publishers will vigorously litigate the appeal of this case, which stands for foundational copyright principles. Copyright, not infringement, is the engine of creativity that serves the public interest.”

And so it is that the United States’ publishers’ association has announced the filing of the new brief, highlighting these points from the new brief:

  • Controlled digital lending is a frontal assault on the foundational copyright principle that rights holders exclusively control the terms of sale for every different format of their work—a principle that has spawned the broad diversity in formats of books, movies, television, and music that consumers enjoy today.
  • “…There is no resemblance between the Internet Archive’s conversion of millions of print books into ebooks and the historical practice of lending print books.  Nor does the Internet Archive’s distribution of ebooks without paying authors and their publishers a dime conform with the modern practices of libraries, which acquire licenses to lend ebooks to their local communities and enjoy the benefits of digital distribution lawfully.
  • The Internet Archive operates a mass-digitization enterprise in which it copies millions of complete, in-copyright print books and distributes the resulting bootleg ebooks from its site to anyone in the world free. Granting summary judgment, the district court properly held that the Internet Archive’s infringement is not saved by fair use as each of the four factors weighs against the Internet Archive under longstanding case law.
  • “In sum, the Internet Archive distributes the publishers’ copyrighted material in a market that the publishers, as the copyright owners, are exclusively entitled to exploit, and the Internet Archive looks to replace the publishers as the supplier of ebooks to its customers.  ‘This is precisely the kind of harm the fourth factor aims to prevent.’
  • “’There is nothing transformative about the Internet Archive’s controlled digital lending practices because it does nothing ‘more than repackage or republish’ the works. ‘The Internet Archive does not reproduce the works in suit to provide criticism, commentary, or information about them.’  Rather, the Internet Archive admits that controlled digital lending serves a ‘similar’ purpose to licensed library ebooks—i.e., to make books available to be read—which precludes transformativeness ‘even if the two were not perfect substitutes.’
  • “The Internet Archive’s flawed policy argument is that the law must change to ‘ensure that technological innovation allows libraries to improve access to books…’ But public libraries practicing ‘traditional library lending’ across the country have already implemented this ‘technological innovation’ via the publishers’ authorized library ebooks—which serve ‘people of diverse geographical, cultural, and socioeconomic backgrounds,’ ‘individuals with disabilities,’ and ‘residents of rural and urban areas,’ as well as facilitating research.  In other words, the publishers have realized the innovation [that] the Internet Archive belatedly champions; the Internet Archive is merely usurping it.
  • “The authorized library ebook market is thriving—readers have never had more access to free, licensed ebooks than they do today…  The number of ebooks and audiobooks checked out via OverDrive in 2020 was 430 million, a more than 500-percent increase from 2012.
  • “Copyright law benefits the public by guaranteeing that authors and publishers have the right to get paid for ebook editions of their works, not by idolizing consumer convenience.
  • “While the potential for catastrophic market harm should be obvious, the dangers to the publishers’ ebook markets are far from hypothetical, not only because of the historic damage that out-of-control content distribution has wrought on the music and news industries, but because the rapid development of generative AI has unleashed new threats involving both mass reproduction and substitution of literary works and other works of authorship.
  • “The Internet Archive ‘tries to justify its mass-scale infringement through a wholly manufactured theory it calls ‘controlled digital lending’ (‘CDL’), arguing that CDL is a ‘modern, more efficient version of lending that is used by libraries across the country.’  But, as the district court ruled, there is ‘no case or legal principle support[ing the] notion’ that controlled digital lending constitutes fair use—and ‘[e]very authority points the other direction.'”

The publishers’ 75-page brief filed Friday with the appellate court can be found here (PDF).

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.

See also:

About the Author

Porter Anderson

Facebook Twitter

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.