From Publishers Weekly:
More than four months after a federal judge found the Internet Archive liable for copyright infringement for its program to scan and lend library books, the parties have delivered a negotiated agreement for a judgment to be entered in the case. But a final resolution in the case could still be many months, if not years, away, as Internet Archive officials have vowed to appeal.
The jointly proposed agreement includes a declaration that cements the key finding from Judge John G. Koeltl’s March 24 summary judgment decision: that the IA’s unauthorized scanning and lending of the 127 in-suit copyrighted books under a novel protocol known as “controlled digital lending” constitutes copyright infringement, including in the IA’s controversial “National Emergency Library” (under which the IA temporarily allowed for simultaneous access to its collections of scans in the the early days of the pandemic, when schools and libraries were shuttered).
Most importantly, the proposed agreement includes a permanent injunction that would, among its provisions, bar the IA’s lending of unauthorized scans of in-copyright, commercially available books, as well as bar the IA from “profiting from” or “inducing” any other party’s “infringing reproduction, public distribution, public display and/or public performance” of books “in any digital or electronic form” once notified by the copyright holder. Under the agreement, the injunction will not be stayed while the case is on appeal—essentially meaning that once Koeltl signs off, the IA will have to take stop making unauthorized scans of copyrighted works available to be borrowed within two weeks of notification.
The parties left one final dispute for Koeltl to clean up, however: what books will be “covered” by the proposed injunction?
In a letter to the court, IA attorneys argue that “Covered Books” should be limited to books that are both “commercially available” and available in digital format. “This case involved only works that the Publishers make available as e-books and so the scope of any injunction should be limited accordingly,” IA attorneys argue. “Because the parties did not have the opportunity in this case to litigate the degree to which the unavailability of digital library licensing would affect the fair use analysis, it is inappropriate for an injunction in this case, by its breadth, to effectively prejudge the outcome of that question.”
Lawyers for the plaintiff publishers counter that the injunction should cover all unauthorized scans of commercially available books, whether the copyright holder has licensed a digital edition or not. “The law is clear that the right to decide whether or not to publish a book in electronic format belongs to its authors and publishers, not IA,” the publishers’ letter argues. Furthermore, IA’s unauthorized digital editions create “clear potential market harm to the print book market,” the publisher letter claims, because a “straight, verbatim digital copy of the entire work is an obvious competing substitute for the original.”
It is expected Koeltl will simply rule on the dispute based on what’s already been filed, and move forward with the proposed judgment.
In his emphatic March 24 summary judgment ruling, Koeltl easily found the IA’s program to be infringement, eviscerating the IA’s fair use defense in the process. “At bottom, IA’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,” Koeltl held in his decision. “But no case or legal principle supports that notion. Every authority points the other direction.”
Link to the rest at Publishers Weekly
PG was more than a little surprised that the publisher who won the case spent so much time in negotiations with The Internet Archive.
IA was patently wrong in doing what they were doing. The organization’s rationale was the frothiest legal argument PG has seen for a long time. This decision and opinion was one of the easiest to make that the trial judge has had in several years.