AAP: “Publishers File Brief Opposing Internet Archive Appeal of Loss” (Hachette Book Group, et al, v. Internet Archive)

Will be updating this post with media coverage, documents,  amicus briefs and other filings, etc. At the bottom of this post you will find a link to the Internet Archive’s brief and other materials. 

From the Association of American Publishers (AAP):

Today, Hachette Book Group, HarperCollins Publishers, Penguin Random House, and Wiley (the “Plaintiffs”), filed a brief opposing Internet Archive’s appeal of its loss in the copyright infringement case Hachette Book Group, et al, v. Internet Archive.  In June 2020, the Plaintiffs filed suit against the Internet Archive for its digitization of millions of print books and distribution of the resulting bootleg ebooks for free from its website, without the consent of the publishers and their authors or the payment of any license fee.

The filing in the case followed the District Court’s March 24, 2023 grant of summary judgment in favor of publishers, finding Internet Archive liable for copyright infringement. That decision unequivocally rejected Internet Archive’s argument that so-called “controlled digital lending” constitutes fair use, holding that each “enumerated fair use factor favors the Publishers,” and noting that any “copyright infringer may claim to benefit the public by increasing public access to the copyrighted work” (P. 44, quoting Harper & Row Publishers v. Nation Enterprises).

Excerpts of the brief include:

• Controlled digital lending is a frontal assault on the foundational copyright principle that rightsholders 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 IA’s conversion of millions of print books into ebooks and the historical practice of lending print books. Nor does IA’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 (“IA”) operates a mass-digitization enterprise in which it copies millions of complete, in-copyright print books and distributes the resulting bootleg ebooks from its website to anyone in the world for free. Granting summary judgment, the District Court properly held that IA’s infringement is not saved by fair use as each of the four factors weighs against IA under longstanding case law.

• In sum, IA distributes the Publishers’ copyrighted material in a market that the Publishers, as the copyright owners, are exclusively entitled to exploit, and IA 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 IA’s CDL practices because it does nothing “more than repackage or republish” the Works. “IA does not reproduce the Works in Suit to provide criticism, commentary, or information about them.” Rather, IA admits that CDL 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.”

• IA’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 IA belatedly champions; IA 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% increase from 2012.

• Copyright law benefits the public by guaranteeing that authors and publishers have the right to get paid for ebook editions of their works, not by idolizing consumer convenience.

• While the potential for catastrophic market harm should be obvious, the dangers to the Publishers’ ebook markets are far from hypothetical, not only because of the historic damage that out-of-control content distribution has wrought on the music and news industries, but because the rapid development of generative AI has unleashed new threats involving both mass reproduction and substitution of literary works and other works of authorship.
• Internet Archive “tries to justify its mass-scale infringement through a wholly manufactured theory it calls “controlled digital lending” (“CDL”), arguing that CDL is a “modern, more efficient version of lending that is used by libraries across the country.”  But, as the District Court ruled, there is “no case or legal principle support[ing the] notion” that controlled digital lending constitutes fair use – and “[e]very authority points the other direction.”

Direct to Complete AAP Post

Direct to Plaintiffs-Appellees Brief (75 pages; PDF)

Background

Note: The Internet Archive filed the appeal brief on December 15, 2023.

Your can access the filing, amicus briefs (filed as of 3/15/2023), and additional background materials here.

• AAP Comment on Internet Archive Appeal (September 11, 2023)

Statements

• Authors Alliance:  Publishers’ Reply Brief In Hachette V. Internet Archive: First Impressions

Media Reports

• Publishers Cite Napster and AI Training Threats in Legal Battle with the Internet Archive (via TF)
• Publishers File Appeal Brief in Internet Archive Copyright Suit (via PW)
• US Publishers File Brief Opposing Internet Archive’s Appeal (via PP)

Filed under: Companies (Publishers/Vendors), Digital Preservation, Funding, Libraries, News, Public Libraries, Reports