From Publishing Perspectives:
[F]our primary member-publishers of the Association of American Publishers have filed a motion for judgment against the Internet Archive in this case that has international implications because of the reach of Internet connectivity. A “summary judgment” is a way for one party to win a case without a trial.
As Publishing Perspectives readers will recognize, this is a stage in two years of litigation that began in early June 2020, when the publishers, three of them among the Big Five, filed a copyright infringement lawsuit against the Internet Archive, in the US District Court for the Southern District of New York.
Those plaintiff-publishers:
- Hachette Book Group
- HarperCollins Publishers
- John Wiley & Sons
- Penguin Random House
The 2020 lawsuit asked the court to enjoin the San Francisco-based Internet Archive’s “scanning, public display, and distribution of entire literary works”—which it has offered to the international public through what the association terms “global-facing businesses” branded the “Open Library” and “National Emergency Library.”
….
As you’ll remember, the Internet Archive responded by claiming that its operations in the Open Library and shorter-lived National Emergency Library were couched in a concept called Controlled Digital Lending that it asserted would protect its use of copyrighted content without payment or permission as a form of “fair use,” in some cultures called “fair dealing.”
A concise explication of the publishers’ complaint is found in the court filing’s preliminary statement, which says, in part:
“Masquerading as a not-for-profit library, Internet Archive digitizes in-copyright print books on an industrial scale and distributes full-text digital bootlegs for free. Internet Archive has amassed a collection of more than 3 million unauthorized in-copyright ebooks—including more than 33,000 of the publishers’ [and their authors’] commercially available titles—without obtaining licenses to do so or paying the rights holders a cent for exploiting their works.
“Anybody in the world with an Internet connection can instantaneously access these stolen works via the Internet Archive’s interrelated archive.org and openlibrary.org Web sites …
“Having scaled up its operations since the complaint was filed, Internet Archive now ‘lends’ bootleg ebooks to users approximately 25 million times a year.”
In her comment on the day’s request for summary judgment, Maria A. Pallante, the association’s president and CEO, says, “Outrageously, the Internet Archive has wrapped its large-scale infringement enterprise in a cloak of public service, but that posture is an affront to the most basic principles of copyright law.
“We hope and expect that the court will uphold established legal precedent, including by recognizing that formats are neither fungible nor free for the taking, but rather a key means by which authors and publishers exercise their copyright interests, develop new markets, and contribute to public progress.”
. . . .
What’s more, the publishers assert, “The defendant’s activities are part of a larger commercial enterprise that not only provides access to books but also adds to its bottom line. Between 2011 and 2020, the Internet Archive made approximately US$30 million from libraries for scanning books in their
collections.”
Indeed, the filing goes a long way to take apart various elements of the Internet Archive’s arguments.
- For example, it points out that the Archive, under the direction of Brewster Kahle, has said that its site helps rural populations, but “Internet Archive does not even track rural readers and ignores the considerable geographic reach of authorized library ebooks.”
- The filing also produces some interesting observations, reporting that “three of the [plaintiff-] publishers estimate that between 35 percent [and] 50 percent of Americans who read an ebook use free library copies, rather than purchasing a commercial ebook. Internet Archive’s ebooks are no more ‘efficient’ than the authorized ebooks that libraries license—except the authorized ebooks generate revenue for authors and publishers.”
. . . .
There are caveats, as well. Here’s one: “To be clear, this lawsuit does not intend to foreclose the possibility that the unlicensed use of a particular work may be fair use in extenuating circumstances, such as the digital preservation or occasional e-loan of a clearly orphaned work.
“Further, the Association of American Publishers has long supported legislative modernization of Section 108 of the Copyright Act regarding library digitization to address preservation needs. But Internet Archive has gone far beyond what any calibrated exception might allow by appropriating every in-copyright work it can find without license or payment.”
Link to the rest at Publishing Perspectives
This actually points at an easily-predictable loophole:
Nowhere in Title 17 of the United States Code — the Copyright Act of 1976 — is there anything even resembling a definition of “library.” It’s not in the “definitions” section (§ 101), or the two sections that explicitly grant “libraries” greater privileges (§§ 108 and 121).
More broadly, I’ve looked but never found any clear definition of “library” in the United States Code. Anywhere. Similarly, even grants programs announced over the past quarter of a century through the Federal Register have had no such definition, and I’ve not found one in the seemingly relevant parts of the Code of Federal Regulations. So on that basis, it’s not entirely implausible to cloak oneself as a “library” due to new technology; after all, we still can’t decide whether internet and social-media service providers are “common carriers” (which makes a yuuuuuuuuuge difference in potential bases for liability and rights to exclude/control “misinformation,” even with Communications Decency Act § 230). I think it’s a bad-faith twisting of common understanding — or at least the common American understanding — of “what a library is,” but consider “navigable waters of the United States” as a parallel…
And that obvious loophole is why there is even an argument to be had here. (IMNSHO it’s a bad argument, but then I’ve been tangling with Kahle and his henchcreatures since the 1990s. Of course, they believe that they’re the heroes and I’m a supervillain, but they’ve been using variations on the “we’re a library so phhht to commercial rights!” excuse since 1997.) Had anyone been smart enough to say “Hey, guys, we’re giving an entire group of organizations a partial exemption from copyright law, shouldn’t we at least define what it takes to be in that group to deter evasion?” in the days immediately after Watergate… never mind.