From Publishing Perspectives:
On Friday . . . 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.
. . . .
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.
Link to the rest at Publishing Perspectives