Built on its existing Open Library, the NEL aimed to assist “displaced learners” with initially unlimited access to more than a million books.
Already angered by the activities of the Open Library, major publishers Hachette, HarperCollins, John Wiley and Penguin Random House responded by filing a massive copyright infringement lawsuit against the Internet Archive.
Background to Publishers’ Lawsuit
In their complaint the publishers equated the libraries to pirate services, stating they had no right to scan books and lend them out. Claiming direct and secondary copyright infringement, they demanded millions of dollars in statutory damages.
In June, IA founder Brewster Kahle called on the publishers to make peace but with no public sign of that happening, the lawsuit is progressing.
This week the most significant responsive document so far appeared on the docket, detailing Internet Archive’s answer to the complaint and its affirmative defenses. It begins with a lengthy opening statement which in part seeks to highlight synergies between the now-warring factions.
Internet Archive’s Answer – Controlled Digital Lending
“Like Plaintiffs, the Internet Archive believes that ‘[b]ooks are a cornerstone of our culture and system of democratic self-government’ and ‘play a critical role in education.’ Accordingly, democratizing access to information, and facilitating access to books in particular, has been a core part of the Internet Archive’s mission for decades,” it reads.
“But, for many people, distance, time, cost, or disability pose daunting and sometimes insurmountable barriers to accessing physical books. Digitizing and offering books online for borrowing unlocks them for communities with limited or no access, creating a lifeline to trusted information.”
The statement spends time explaining the process of CDL – Controlled Digital Lending – noting that the Internet Archive provides a digital alternative to traditional libraries carrying physical books. As such, it “poses no new harm to authors or the publishing industry.”
Not only that, CDL as practiced by the Internet Archive is entirely legal, the defendants argue.
Legal Under the Copyright Act’s Fair Use Doctrine
“The Internet Archive has made careful efforts to ensure its uses are lawful. The Internet Archive’s CDL program is sheltered by the fair use doctrine, buttressed by traditional library protections. Specifically, the project serves the public interest in preservation, access and research—all classic fair use purposes,” IA’s answer reads.
“As for its effect on the market for the works in question, the books have already been bought and paid for by the libraries that own them. The public derives tremendous benefit from the program, and rights holders will gain nothing if the public is deprived of this resource.”
In addition to the usual laundry list of responses to various claims and allegations made in the complaint, the Internet Archive ultimately arrives at the meat of its answer.
Seven Affirmative Defenses
In its first affirmative defense, IA argues that the complaint fails to state a claim. In other words, even if the allegations in the complaint were found to be true, they are insufficient to establish a cause of action.
As expected, IA’s second affirmative defense centers on fair use, arguing that even when the publishers’ copyrighted materials were used, such use is protected under law. Furthermore, IA argues that the plaintiffs’ claims are barred “in whole in part” by the First Sale Doctrine, including under 17 U.S.C. § 109.
Perhaps unsurprisingly, given the claims of copyright infringement and Internet Archive’s positive responses to takedown notices, the answer states that IA is also protected “in whole or in part” by 17 U.S.C. § 512(c), commonly known as the safe harbor provisions of the Copyright Act.
Other affirmative defenses state that the publishers are not entitled to statutory damages because IA believed that its use of the copyrighted content was covered by fair use, while the complaint flounders due to the Statute of Limitations and the doctrine of laches.
As previously reported, the Internet Archive’s defense is being handled by California-based law firm Durie Tangri and is supported by the team at the EFF.
Internet Archive’s Answer and Affirmative Defenses can be obtained here (pdf)