Joint Proposal For Next Steps in Hachette et al v. Internet Archive Case Submitted Today
We Will Continue to Update This Post with Additional Materials, Press Reports, etc. as they become available. Look for them at the bottom of this post.
Latest Update: 11:55am; September 11, 2023:
——End Update——
On March 24, 2023 the plaintiffs motion for summary judgment was granted in the Hachette v. Internet Archive lawsuit.
At that time, Judge John Koetl gave the parties 14 days to, “submit their respective proposals (or preferably a joint proposal) for the appropriate procedure to determine the judgment to be entered in this case.”
Today, 140 days later (10 extensions were granted), we finally have a joint proposal.
Filings
From the Letter:
The parties have mutually agreed on all provisions of this document except on one issue described in the attached letters (see Exhibits B and C hereto), which they have agreed to submit to the Court for adjudication. [Emphasis Ours] The parties also have entered into a confidential “Agreement Regarding Stipulated Monetary Judgment Payment” conditioned on the Internet Archive’s right of appeal, which avoids the need for further litigation regarding damages, fees, or costs.
As you will see from the attached letters, Paragraph E of the proposed “Consent Judgment Subject to Appeal” contains a mutually agreed “Permanent Injunction” conditioned on Internet Archive’s right of appeal enjoining the Internet Archive Parties from distributing the “Covered Books” in, from or to the United States electronically, among other provisions. The term “Covered Book” is defined in Paragraph E.1. [Emphasis Ours] Although the parties agree on most aspects of the definition, there is one issue on which they seek the Court’s ruling. Plaintiffs want the definition of Covered Books to include books that are commercially available in any format, whereas the Internet Archive wants the definition of Covered Books to include only books that are commercially available in any electronic text format. For the Court’s convenience, we have highlighted this disputed text in Exhibit A. The Plaintiffs’ position is set forth in Exhibit B hereto, and the Internet Archive’s position is set forth in Exhibit C hereto.
Attachments
From the Proposed Consent Judgement:
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED as follows:
A. This Court has subject matter jurisdiction over this action, which arises under the Copyright Act of 1976, 17 U.S.C. §§101 et seq, pursuant to 28 U.S.C. §§ 1331 and 1338.
B. Judgment is entered for Plaintiffs and against Defendant on Plaintiffs’ claims against Defendant for copyright infringement under 17 U.S.C. §501.
C. The activities of the Internet Archive in engaging in “controlled digital lending” of the 127 Works in Suit as further described in the Opinion and Order constitute copyright infringement;
D. The activities of the Internet Archive in engaging in the “National Emergency Library” in connection with the 127 Works in Suit as further described in the Opinion and Order constitute copyright infringement; and
E. The Court hereby enters the following permanent injunction (the “Permanent Injunction”):
1. “Covered Book” shall mean any in-copyright book or portion thereof, whether in existence as of the date hereof or later created, in which any Plaintiff (or any subsidiary or corporate affiliate of a Plaintiff) (a) owns or controls an exclusive right under the Copyright Act and makes the title commercially available for sale or license [in any format OR in any electronic text format]; and (b) has provided notice to the Internet Archive regarding such title by sending the Internet Archive a machine readable catalog in a standardized form identifying such commercially available titles (including any updates thereto in the Plaintiffs’ discretion), or other similar form of notification, once 14 days have elapsed since the receipt of such notice. A “Covered Book” includes all in-copyright editions of such title.
2. Subject to the terms of Paragraphs 4, 5 and 6 below, the Internet Archive, its officers, agents, servants, employees, and attorneys, and other persons who are in active concert or participation with such persons (collectively, the “Internet Archive Parties” and each individually an “Internet Archive Party”), are permanently enjoined and restrained from engaging in any of the following acts in, from or to the United States: a) the distribution to the public, public display, and/or public performance, of Covered Books in, from or to the United States in any digital or electronic form, including without limitation on the Internet Archive website (collectively “Unauthorized Distribution”); b) the reproduction of Covered Books for Unauthorized Distribution; c) the creation of derivative works of the Covered Books for Unauthorized Distribution; d) inducing, or knowingly and materially contributing to, any individual or entity’s infringing reproduction, public distribution, public display and/or public performance of Covered Books in any digital or electronic form, as those terms are used in the law of contributory copyright infringement applied by the Second Circuit; and/or e) profiting from another individual or entity’s infringing reproduction, public distribution, public display and/or public performance of Covered Books in any digital or electronic form while declining to exercise a right to stop or limit it, as those terms are used in the law of vicarious copyright infringement applied by the Second Circuit.
3. [Emphasis Ours] This Permanent Injunction is effective immediately and shall not be stayed pending appeal of the Opinion and Order. Internet Archive shall provide a copy of this Permanent Injunction to each of its officers, agents, servants, employees, and attorneys. Internet Archive shall also provide a copy of this Permanent Injunction to Open Library of Richmond, libraries whose print books have been counted by Internet Archive toward its maximum lendable digital copies on Internet Archive’s website, and all persons in active concert or participation with Internet Archive or its officers, agents, servants, employees, or attorneys in connection with the Covered Books.
4. The Internet Archive Parties shall not be in violation of the terms of Paragraph 2 with respect to:
a) Any uses to which exceptions and limitations set forth in 17 U.S.C. § 108, and §§ 110-122 are properly applicable (with Plaintiffs reserving all rights to contest such applicability);
b) An Internet Archive Party’s use of any Covered Book for which such party obtains express written authorization for that use from a party that owns or controls the applicable rights to such Covered Book, provided such authorization is in force and valid at the time of such party’s use of the Covered Book;
c) An Internet Archive Party’s use of Covered Books for the purpose of accessibility for “eligible persons,” as that term is defined in 17
Attachments
UPDATE August 18, 2023
New From the Internet Archive: “What the Hachette v. Internet Archive Decision Means For Our Library”
So what is the impact of these final orders on our library? Broadly, this injunction will result in a significant loss of access to valuable knowledge for the public. It means that people who are not part of an elite institution or who do not live near a well-funded public library will lose access to books they cannot read otherwise. It is a sad day for the Internet Archive, our patrons, and for all lbraries.
Because this case was limited to our book lending program, the injunction does not significantly impact our other library services. The Internet Archive may still digitize books for preservation purposes, and may still provide access to our digital collections in a number of ways, including through interlibrary loan and by making accessible formats available to people with qualified print disabilities. We may continue to display “short portions” of books as is consistent with fair use—for example, Wikipedia references.The injunction does not affect lending of out-of-print books. And of course, the Internet Archive will still make millions of public domain texts available to the public without restriction.
Learn More Read the Complete IA Blog Post, View Image (437 words)
UPDATE August 14, 2023
- Judge Approves Consent Agreement
- Court Adopts the Internet Archive’s Position Re: Covered Book
For the following reasons, the Consent Judgment defines “Covered Book” to extend to books that are “commercially available for sale or license in any electronic text format.”
Statements and Reactions
- Statement From Internet Archive: “Our Fight is Far From Over”
- Statement From Association of American Publishers: Publishers and Internet Archive Submit Negotiated Judgment with Permanent Injunction to District Court in Hachette Book Group, et al, v. Internet Archive
More Statements and Reactions
Media Reports
Publishers, Internet Archive Submit Proposed Judgment in Copyright Case (via PW; about 1100 words)
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 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.” Under the agreement, the injunction will not be stayed while the case is on appeal—meaning that once Koeltl signs off, the IA will have to take stop making unauthorized scans of copyrighted works available to be borrowed, following a short notice period.
Read the Complete PW Article
Internet Archive’s Copyright Battle with Publishers Leads to Lending Restrictions (via TorrentFreak)
The book publishers and IA agree on nearly all aspects of the proposed judgment except one. The parties still disagree on the term ‘covered books’ and leave this question open for the court.
The publishers would like all of their copyrighted works to be covered by the injunction, including those that are not available in ebook format. IA, on the other hand, believes that digitizing physical books is fair game if the publishers don’t offer a digital version.
“This case involved only works that the Publishers make available as ebooks and so the scope of any injunction should be limited accordingly,” IA explains.
The publishers disagree and stress that the court has already made it clear that IA is not allowed to digitize and distribute print books en masse without permission. Publishers should also have the right not to release ebooks, if they prefer.
“Of key significance, 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 write.
Read the Complete Reuters TorrentFreak Article
That clarity would come from an appeal, which Mr. Kahle said he intended to mount. In the meantime, it’s business as usual at the archive. The National Emergency Library may be history, but the Open Library division still offers scans of many books under copyright. Loans are for one hour or for two weeks “if the book is fully borrowable,” a term that is not defined.
Some of that is likely to change soon.
The agreement filed on Friday went far beyond dropping the 127 titles from the archive to also removing what the publishers called their “full book catalogs.” Exactly how comprehensive this will be is up to the judge.
A separate deal between the publishers association and the archive will provide an incentive for the archive to take down works by any publisher that is a member of the trade group. The incentive: not getting sued again.
The agreement filed on Friday went far beyond dropping the 127 titles from the archive to also removing what the publishers called their “full book catalogs.” Exactly how comprehensive this will be is up to the judge.
A separate deal between the publishers association and the archive will provide an incentive for the archive to take down works by any publisher that is a member of the trade group. The incentive: not getting sued again.
[Clip]
Mr. Kahle is more sure of himself now, and quite determined to change the world.
Asked if he had made any mistakes, he ignored the question and returned to the attack: “I wish the publishers had not sued, but it demonstrates how important it is that libraries stand firm on buying, preserving and lending the treasures that are books.”
Read the Complete NY Times Article
Publishers, Internet Archive Agree To Streamline Digital Book-Lending Case (via Reuters)
The Internet Archive said in a blog post that the fight was “far from over,” and founder Brewster Kahle said in a statement that “we must have strong libraries, which is why we are appealing this decision.”
Maria Pallante, the CEO of the Association of American Publishers, said in a statement that the plaintiffs were “extremely pleased” with the proposed injunction, which will “extend not only to the Plaintiffs’ 127 works in suit but also to thousands of other literary works in their catalogs.”
Read the Complete Reuters Article
See Also: You can access our coverage of the decision including a large press roundup, the opinion itself. and links to all ten extensions here.
Filed under: Companies (Publishers/Vendors), Digital Collections, Digital Preservation, Interactive Tools, Libraries, News, Patrons and Users, Preservation, Public Libraries, Publishing, Reports, Roundup
About Gary Price
Gary Price (gprice@gmail.com) is a librarian, writer, consultant, and frequent conference speaker based in the Washington D.C. metro area. He earned his MLIS degree from Wayne State University in Detroit. Price has won several awards including the SLA Innovations in Technology Award and Alumnus of the Year from the Wayne St. University Library and Information Science Program. From 2006-2009 he was Director of Online Information Services at Ask.com.
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