Judgment Entered in Publishers, Internet Archive Copyright Case

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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.

4 thoughts on “Judgment Entered in Publishers, Internet Archive Copyright Case”

  1. I’m getting echoes of the GOOGLE case and the AG rights grab over “orphan works”.
    Every time they go to court the publishing establishment actively works to obfuscate and use the courts to expand their domain.

    Hopefully the judge will strike out “commercially” from the final terms.

    I do understand the logic of discriminating between creative commons material (which is copyrighted but fair game) and for-profit books but the term as presented is clearly overly broad.
    Not well thought out. Or maybe too well thought out.

    But that is corporate publishing in a nutshell.

  2. Intelligent people don’t do business under such terms, C. The advance is the only money a traditionally-published author can count on.

    • Well, they don’t now… but prior to this century there was fundamentally no choice.

      And I think I wasn’t clear enough: The problem here is that the publishers kicked all authors who don’t remain beholden to them under the bus. Under the terms of this “judgment,” consider the following sequence:

      Author signs a commercial publishing contract in 1979 for a book
      The book remains “in print” until 2019, thanks to the publisher’s POD program keeping it “commercially available”
      In April 2020, three things happen:
      • The book gets scanned by the Internet Archives and released into the wild
      • The author dies from COVID
      • Thanks to the court backlog caused by COVID, the estate continues in probate until late 2022

      Under the terms of this “judgment,” the author’s heirs have no remedy against the Internet Archive, because at the time the book was scanned there was no “commercially available” edition. It’s a subtle way of punishing authors. If, during the period between reversion and the author/heirs making a new edition “commercially available,” the IA does its scan (of the no-longer-“commercially available” version, which might well be a stripped mass-market paperwork that was reported as a “return” but actually “donate”) and makes it available, the author probably has no remedy: This judgment doesn’t cover it, and the statute of limitations has probably run. <sarcasm> But if only the author had left the book with a commercial publisher that would give it all the care it needs… and it would have been “commercially available,” so the “judgment” protects it… </sarcasm>

  3. What I’m most pissed off about is the whole “commercial availability” crap that undermines authors’ rights. The publishers are not the copyright holders, nor proxies for authors — especially, but not only, when the publisher may have been requested to return rights a dozen times or more since the late 1990s but refused because the publisher’s outrageously-overpriced POD edition kept the book from being “out of print” under definitions agreed in the 1970s.

    Or worse yet for the author, went out of business so the rights couldn’t be properly returned.

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