From Publishing Perspectives:
Following the June 1 filing of a copyright infringement lawsuit by four publisher-members of the Association of American Publishers—including three of the Big Five—the Internet Archive has made its scheduled response and released to news media today (July 29) a copy of its filing with the US District Court for the Southern District of New York.
As Publishing Perspectives readers will remember, this is the suit that asks the court to enjoin the archive’s scanning, public display, and distribution of whole 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.
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What underlies the contention here is a concept called Controlled Digital Lending, a notion never tested in court and widely considered suspect by many in the publishing industry and author corps.
Controlled Digital Lending’s essential position is that it’s fine for a nonprofit like the archive or a library to scan a print copy of a book it owns, then lend that digital scan out on a one-copy-per-one-user basis. The print copy is to be unavailable while the digital copy is loaned, meaning that only one copy is out at a time in any format, and an author or publisher has the right to opt out of this by asking. Many rights holders have, indeed, asked to opt out because, as they see it, the user of a loaned digital copy of their book has paid nothing for that loan and this means copyright revenue has gone unpaid.
Publishers and authors thus claim that Controlled Digital Lending is not a valid form of “fair use” (called “fair dealing” in some cultures) under copyright law, and in normal procedures with libraries, a publisher’s arrangement for a digital book licenses the library to lend it out only for a certain number of loans and in a set time frame, after which a new license must be bought.
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In a blog post dated today at the Internet Archive’s site, Kahle lays out the nonprofit’s stance on the lawsuit.
Probably a point of agreement all around is that however much the National Emergency Library may have prompted the suit, the real issue is Controlled Digital Lending. And Kahle goes right to it in his opening line, writing that the lawsuit’s intent is “to end the practice of Controlled Digital Lending,” which he writes is “the digital equivalent of traditional library lending.”
He also continues to see the pandemic as an element of his position, writing, “As we launch into a fall semester that is largely remote, we must offer our students the best information to learn from—collections that were purchased over centuries and are now being digitized. What is at stake with this lawsuit? Every digital learner’s access to library books. That is why the Internet Archive is standing up to defend the rights of hundreds of libraries that are using Controlled Digital Lending.”
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“These publishers call for the destruction of the 1.5 million digital books that Internet Archive makes available to our patrons.
“This form of digital book burning,” he writes, “is unprecedented and unfairly disadvantages people with print disabilities. For the blind, ebooks are a lifeline, yet less than one in 10 exists in accessible formats. Since 2010, Internet Archive has made our lending library available to the blind and print disabled community, in addition to sighted users. If the publishers are successful with their lawsuit, more than a million of those books would be deleted from the Internet’s digital shelves forever.”
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“Contrary to the publishers’ accusations, the Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves. They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world. Copyright law does not stand in the way of libraries’ right to lend, and patrons’ right to borrow, the books that libraries own.”
Link to the rest at Publishing Perspectives
Some translations from lawyer to English, at a very high level of abstraction:
(1) You can discount two of the affirmative defenses raised… because they can’t be raised in an Answer, only in a motion to dismiss. And civil procedure geeks like me find it highly unusual that in an area in which the fundamental publicly stated defense is that they’re legally entitled to do what the publishers said they did, the defendants didn’t file a motion to dismiss for failure to state a claim.
(2) Page 25 contains a blast from the past in publishing disputes. Hmmm. One wonders where one has seen the name “Durie” in a major publishing dispute before… and in what context… and whether there are conflict issues that beg to be resolved…
(3) Combine those two, and my conclusion — having litigated virtually the identical conduct before, Ellison v. Robertson — is that the IA doesn’t expect to win this case. The IA does, however, expect to influence legislation through the way this case proceeds, combined with the implication that it has a bigger warchest so as to litigate the other side to death (part of what happened in GoogleBooks, and a major part of the defense strategy in both Tasini and Muchnick). Which, in turn, explains why it filed an Answer instead of a motion to dismiss: Now it’s time for all of that expensive discovery, and the fishing expeditions, and the witness harassment!
To partly quote The Dead Poets Society, I’m not a cynic; I’m a realist. And I know some of the people who are, or are likely to be behind the scenes, involved in this.
CE – Re: (1), perhaps IA tried to save money when it hired its counsel.
I have minimal knowledge of the American legal system, but you seem to suggest that – at least for this kind of case – it is fundamentally dysfunctional. Is my inference fair?
Also, my impression is that US legal fees will add up very quickly. Obviously, organisations like Google – or any other large corporation – have all the money in the world to drag out cases but does the Internet Archive really have a large war chest? They probably have $3m or $4m net assets but will this stretch far? Will the organisations funding them want to pay for the court case, especially if they look like loosing? I guess that they could do a GoFundMe and expect to pick up a fair amount from their supporters?
Opinions vary.
Mostly it is because, as a free country with a legal system rooted on common law and precedent there is a lot of flexibility and room for interpretation but not enough for some, who bemoan that copyright and patents have consitutional rights and can’t be minimized (or abolished) at their convenience. So *for them* IP laws are “broken”. Often just for existing.
Lot of folks are true believers in “free”.
That most definitely applies to the IA and the crowdsource funders.
It’s not that they are heavilly funded but rather that they are counting on traditional publishers’…(parsinomy? chintziness?)…unwillingness to spent. The IA has been pirating for years but the publishers were unwilling to defend their authirs’ interest because it was mostly backlist and not the “fresh produce”. With the lockdown shutting down pbook revenues and IA going wide open and wrapping themselves in the flag even tbe cheapskates had to take a stand.
What the IA isn’t factoring in is that if their excuses were to be allowed to stand, it wouldn’t be limited to pbooks but also music on CD and video on disk. And those folks aren’t cheap. If the legal proceedings last there will be no shortage of friends of the court briefings, with deep pockets behind them.
This case is even clearer than the Agency Conspiracy because their defense is essentially, “Yes. We did it. But the law doesn’t apply to us. Because we say so.”
Yeah. Right.
(1) There are significant dysfunctional aspects of every legal system. IMNSHO, the American ones are less bad than most nations… which doesn’t make things good enough.
(2) The IA has Brewster Kahle’s nine figures to draw upon, and he doesn’t have to report to shareholders about how he spends anything. The IA’s purported limited assets are intended to deter people from suing it because it will claim inability to pay. This is a not-uncommon dodge… and it wasn’t even invented in the US, Shelley’s Case (as in “The Rule in”, a phrase that will strike despair, rage, and confusion into any law student in common-law countries) precedes the US legal system by over two centuries, and involved using an almost identical dodge to avoid the consequences.