Publishers File Copyright Infringement Suit Against Internet Archive

From Publishing Perspectives:

Today (June 1), four publisher-members of the Association of American Publishers—including three of the Big Five—have filed a copyright infringement lawsuit against the Internet Archive, in the US District Court for the Southern District of New York.

The suit asks the court to enjoin the archive’s scanning, public display, and distribution of entire literary works—which it offers to the public through what the association terms “global-facing businesses” branded the Open Library and National Emergency Library. These are found at both openlibrary.org and archive.org.

The Internet Archive, the association states in media messaging this morning, “has brazenly reproduced some 1.3 million bootleg scans of print books, including recent works, commercial fiction and non-fiction, thrillers, and children’s books.”

. . . .

In making the announcement of today’s court filing, Maria A. Pallante, president and CEO of the association, says, “Today’s complaint illustrates that the Internet Archive is conducting and promoting copyright infringement on a massive scale. In scanning and distributing literary works to which it has no legal or contractual rights, the archive deliberately misappropriates the intellectual and financial investments of authors and publishers and brazenly ignores the copyright law that Congress enacted.

“IA operates with profound disrespect for the value chain of copyright, in which authors, publishers, bookstores, platforms, educational institutions, and libraries work together for the benefit of society, whether during prosperity or a pandemic.”

. . . .

The American association has had quick support this morning from its counterpart organization in the UK market.

From London, Publishers Association CEO Stephen Lotinga says, “We stand fully in support of this action by the Association of American Publishers, which reflects the very significant concerns held by publishers and authors about this site.

“The Internet Archive purports to be a library but it is not and behind that guise it is facilitating the distribution of millions of pirated books without paying a penny to the authors and publishers who produce them.

“We are living in unprecedented times, and that’s why publishers have gone out of their way to make content accessible to those who need it, but there’s no excuse for anyone to use the current crisis to infringe copyright in this way.”

. . . .

“We offered to work with Internet Archive in 2017 to create a licensing system that would make the ‘Open Library’ compliant with copyright law, and that offer was rejected. The Internet Archives’ unwillingness to work with authors and publishers to make their program legal unfortunately made a lawsuit the only recourse.”

. . . .

“Despite the self-serving library branding of its operations,” the AAP’s staff writes, “the Internet Archive’s conduct bears little resemblance to the trusted role that thousands of American libraries play within their communities and as participants in the lawful copyright marketplace.

“The Internet Archive scans books from cover to cover, posts complete digital files to its Web site, and solicits users to access them free by signing up for Internet Archive accounts. The sheer scale of the Internet Archive’s infringement described in the complaint—and its stated objective to enlarge its illegal trove with abandon—appear to make it one of the largest known book pirate sites in the world.

“The Internet Archive publicly reports millions of dollars in revenue each year, including financial schemes that support its infringement design.

“In willfully ignoring the Copyright Act, the Internet Archive conflates the separate markets and business models made possible by the statute’s incentives and protections, robbing authors and publishers of their ability to control the manner and timing of communicating their works to the public. The Internet Archive not only conflates print books and ebooks, it [also] ignores the well-established channels in which publishers do business with bookstores, e-commerce platforms, and libraries, including for print and ebook lending.

“As detailed in the complaint, the Internet Archive makes no investment in creating the literary works it distributes and appears to give no thought to the impact of its efforts on the quality and vitality of the authorship that fuels the marketplace of ideas.”

Link to the rest at Publishing Perspectives

PG notes that, among its other activities, The Internet Archive hosts a Malware Museum, including code from which the Archive assures its users, it has removed “destructive routines”.

The Internet Archive also includes a Donation Page, which includes the following message:

We need your help to ensure that anyone curious enough to seek knowledge will be able to find it here, for free. We’re an independent, non-profit website that the entire world depends on.

PG is no friend of the large traditional publishers who have filed this suit and does not like many of the things they do.

However, in this matter, PG is not sympathetic with the Internet Archive’s actions with respect to books. The IA provides lots of other useful services, including scanning copies of public documents, including some patent applications, court pleadings, out-of-copyright materials, etc.

However, considering the world-wide reach of IA, it also provides materials, including entire books, that others can download from anywhere in the world, then, among other things, resell on a commercial basis with little fear of discovery by the original author or punishment.

To be clear, if the Internet Archive stopped accepting material protected by copyright tomorrow and removed all such material from its online collection, that would not mean that book piracy would immediately stop. There are other avenues diligent would-be book thieves could pursue, but it would certainly make their work harder and, likely, less-profitable.

1 thought on “Publishers File Copyright Infringement Suit Against Internet Archive”

  1. I blame Congress.

    No, really. The fault is in the poor drafting and logic of the Copyright Act. (Just think for a moment about the irony that the one part of the United States Code that is indubitably and inherently connected to “progress in the arts” is so badly written.) Although there are multiple references to special treatment of libraries in Title 17 — especially, but not only, in § 108 — there is not one hint of a definition of what a “library” is.

    Nor elsewhere in the entire United States Code.

    Nor an actual definition of “library” (as distinct from “eligible library”) in the Code of Federal Regulations.

    So we really shouldn’t be surprised that a bad actor — one who was criticized rather harshly by the Ninth Circuit for attempting to refile and relitigate a copyright suit that he’d already lost in the Supreme Court, see, e.g., Kahle v. Gonzalez, 487 F.3d 697 (9th Cir. 2007) — is attempting in bad faith to claim a public-relations label to which, in all honesty, there’s no validity claim to without accepting the twin premises that “information wants to be free” and “all material represented in fixed form is just information; there is no independent ‘expression.'” In short, there’s a difference between an “archive” (which does not have any special privileges under the Copyright Act) and a “library” (which does), but these — people — want to pretend otherwise.

    Now, really: This kind of problem wasn’t foreseeable during the twenty years that it took to draft the 1976 Act (ok, admittedly, most of the critical language was only added in the last two weeks before passage, but that’s for another time)? Or in the twenty years thereafter leading up to the Digital Millennium Copyright Act in 1998? Or in the twenty years since? Shame on you, Congress.

    N.B. If you’ve at all read the 250-page report on § 512, you’ve run across my work on the way that bad actors evade things, both explicitly (all those references to Ellison) and behind the scenes. I’d like to think I demonstrated a little bit about the definitional lacunae in the Copyright Act over the years… If you can point to a specific reference that I’ve missed, so be it, and I’ll learn; I just haven’t found the specific references, and not for want of trying. (Even the American Library Association wasn’t able to come up with an answer when queried, though.)

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