Media Reports: “Internet Archive Fights to Preserve Digital Libraries in Second Circuit Hearing”

Ed. Note: We will be updating this post with additional media coverage and statements if/when they become available. 

UPDATE July 1, 2024 Audio Recording of Friday’s Oral Argument + Blog Post (Comments/Resources) From Internet Archive (IA)

—-

From Courthouse News Service:

The online library Internet Archive asked a panel of Second Circuit judges on Friday to toss a lower court’s ruling that stated its digital stash of scanned books infringed on the copyrights of some of the largest book publishers in the county.

The service is functionally and legally identical to that of traditional brick and mortar libraries, the Internet Archive’s attorney Joe Gratz told the court.

“This case asks whether it is unlawful for a library to lend a book it has bought and paid for to one person at a time, as libraries have always done,” Gratz argued Friday. “And the answer is no. Libraries have never had to pay publishers to lend the books they own, and that result should not change with the advent of digital technology.”

[Clip]

“Internet Archive is making a complete, exact digital copy of the publishers’ print books and distributing them around the world so that they can be read — the exact same purpose for which the publishers are publishing these works,” McNamara said.

[Elizabeth] McNamara [representing the publishing companies] rejected the notion that the Internet Archive was performing a harmless public service. She argued that there are legitimate fears of writers and publishers becoming discouraged from producing and distributing their works, should the court rule against her clients.

Read the Complete Article (880 words)

More From ars technica:

In the weeks ahead of IA’s efforts to appeal that ruling, IA was forced to remove 500,000 books from its collection, shocking users. In an open letter to publishers, more than 30,000 readers, researchers, and authors begged for access to the books to be restored in the open library, claiming the takedowns dealt “a serious blow to lower-income families, people with disabilities, rural communities, and LGBTQ+ people, among many others,” who may not have access to a local library or feel “safe accessing the information they need in public.”

During a press briefing following arguments in court Friday, IA founder Brewster Kahle said that “those voices weren’t being heard.” Judges appeared primarily focused on understanding how IA’s digital lending potentially hurts publishers’ profits in the ebook licensing market, rather than on how publishers’ costly ebook licensing potentially harms readers.

[Clip]

[Electronic Frontier Foundation attorney Corynne] McSherry seemed optimistic that the judges at least understood the stakes for IA readers, noting that fair use is “designed to ensure that copyright actually serves the public interest,” not publishers’. Should the court decide otherwise, McSherry warned, the court risks allowing “a few powerful publishers” to “hijack the future of books.”

Read the Complete Article (893 words)

More From Publisher’s Weekly

But the court also vigorously probed the publishers’ legal arguments for nearly half an hour, and at one point pushed back on the narrative offered by McNamara that the IA and its allies “got together in a room” and “contrived” CDL to rationalize their illegal conduct.

“That’s what fair use is, right?” the court retorted. “Like, people get together and decide, like, can we use it to this extent? What are the limits of how the fair use factors will be applied? I mean, it’s not nefarious to sit down and decide whether you’re proposing to do something that’s covered by fair use or not.”

The court did not decide the case from the bench and gave no time frame for when it would issue a ruling. At a post-hearing press conference, Gratz said a decision could come as early as fall, or could take a year.

Read the Complete Article (730 words)

More Media

• Internet Archive Grilled by Dubious 2nd Cir. over E-Book Library (paywall, via Bloomberg Law)

Blog Posts and Statements

• Hachette v. Internet Archive Update: Oral Argument Before the Second Circuit Court of Appeals (via Authors Alliance)
• Statement on Internet Archive’s Oral Arguments in Appeal for the Right to Own Digital Books (via Fight For the Future)

Appeal Docket

• All Amicus Briefs
• Court of AppDoc. 109  Second Circuit: Hachette Book Group, Inc. v. Internet Archive (23-1260)

Background

• The Internet Archive Files Reply Brief in Lawsuit Appeal (Hachette Book Group, et al, v. Internet Archive)
• AP: “Publishers File Brief Opposing Internet Archive Appeal of Loss” (Hachette Book Group, et al, v. Internet Archive) (March 15, 2024)
• Internet Archive Files Opening Brief in Appeal of Publisher Lawsuit (Hachette et al v. Internet Archive) (December 15, 2023)

How We Got Here

• 1) Notice of Appeal (Filed 9/11/2023) ||| 2) Lawsuit Roundup

Filed under: Companies (Publishers/Vendors), Libraries, News, Patrons and Users, Publishing, Reports, Roundup