In the summer of 2020, publishers Hachette, HarperCollins, John Wiley and Penguin Random House filed a copyright infringement lawsuit against Internet Archive (IA).
The publishers described IA’s ‘Open Library’ as an “unlicensed aggregator and pirate site” that makes illegally scanned books available to the public, causing serious damage to authors and publishing companies alike. In support of the publishers, the Copyright Alliance described the library as “vile“.
In response, the Internet Archive stressed that its ‘Controlled Digital Lending’ (CDL) system (which has aims including preservation, access and research) takes authors’ and publishers’ needs into consideration. By definition, any lending is controlled and the library simply provides a digital alternative to physical libraries. IA also defended its decision, during the early days of the coronavirus, to loosen controls to ensure citizens had access to books while libraries were closed.
Internet Archive later called for a peaceful solution, offering to partner with publishers to create a “digital system that works”. A month later IA filed its answer to the complaint supported by defenses under fair use and the DMCA’s safe harbor provisions, and later attempted to show that its library did publishers no harm.
Two Years of Litigation, Both Parties Request Summary Judgment
After the passing of more than two years and several dozen filings, the parties may be as far apart as ever. Both the publishers and Internet Archive seem convinced that their stance is supported by the law so the parties have requested a pre-motion conference on a motion for summary judgment, hoping to settle the matter without needing a full trial.
In a June 10 letter to Judge John G. Koeltl at the District Court for the Southern District of New York, the plaintiffs say that as leading publishers of tens of thousands of books, they already issue licensed ebook editions to libraries. In contrast, the Internet Archive scans millions of print books and makes a library of three million books available worldwide via the internet, without authorization from rightsholders.
The plaintiffs’ case covers just 127 named titles but they claim that overall, the Internet Archive offers more than 33,000 of their works for free download, a library that unfairly competes with their authorized ebook editions.
“Internet Archive merely imitates and competes with the authorized library ebook editions that Plaintiffs have offered for a decade and which are read by library patrons for free millions of times each year,” the publishers write.
As for IA’s “Controlled Digital Lending” concept, the plaintiffs insist that has no basis in law. They insist that copying their books without permission is illegal, despite IA’s claims that it only lends copies of books that it physically owns while maintaining a one-to-one “owned-to-loaned” ratio.
“The only issue is whether Internet Archive’s massive infringement scheme is fair use under 17 U.S.C. § 107,” the plaintiffs note, adding that the four fair use factors weigh heavily in their favor.
Publishers: IA’s Use is Not Fair
Addressing the purpose and character of the use, the plaintiffs say that reproduction and distribution of verbatim copies of millions of entire ebooks for the same purpose as the original is the “quintessential non-transformative use.”
The plaintiffs do acknowledge that Internet Archive is “nominally a non-profit” but state that IA is used to promote book sales for its related for-profit company Better World Books. They add that IA is not an educational institution but in any event, nonprofit status is not an excuse for book piracy.
In respect of the fourth factor – the effect of the copying use upon the potential market for or value of the copyrighted work – the plaintiffs say that IA failed to pay the fees libraries usually pay to distribute ebooks. IA’s books also act as a substitute in the market “capable of decreasing revenues from both consumers who would have otherwise purchased commercial ebooks and libraries that would have otherwise obtained authorized ebooks.”
“For these reasons, the fair use factors unequivocally favor Plaintiffs and their forthcoming motion for summary judgment should be granted,” the publishers conclude.
Internet Archive: Case Raises Two Distinct Questions
In their June 9 letter to Judge John G. Koeltl requesting a pre-motion conference on a motion for summary judgment, Internet Archive say the case raises two distinct questions. The first, which describes IA’s implementation of Controlled Digital Lending, comes with three conditions;
May a nonprofit library that owns a lawfully made and acquired print copy of a book loan a digital copy of that book to a library patron, if the library (1) loans the book to only one patron at a time for each non-circulating print copy it owns (thus maintaining a one-to-one “owned-to-loaned” ratio); (2) implements technical protections that prevent access to the book by anyone other than the current borrower; and (3) limits its digital lending to books published in the past five or more years?
The second question relates to a twelve-week period when the global pandemic forced the closure of substantially all physical libraries, to the extent that they could not physically loan any of the millions of print books they owned. This was the gap that Internet Archive aimed to bridge with a loosening of its otherwise strict CDL lending parameters to form its National Emergency Library (NEL) initiative.
[During this period] was a nonprofit library permitted to lend books digitally without imposing the one-to-one owned-to-loaned ratio, so long as the library (1) implemented the same technical protections and five year limitation it implements under CDL, and (2) reimposed the one-to-one owned-to-loaned ratio as soon as libraries were once again widely able to lend physical books?
“The answers to these questions will shape how libraries continue to serve the public interest in the digital age,” IA informs the Court. “Internet Archive intends to move for summary judgment that both the CDL and NEL are lawful fair uses.”
Internet Archive: Our Use Was Fair
On the first factor (purpose and character of the use), IA says that it is a 501(c)(3) nonprofit public charity that lends books for free. As to transformativeness, IA says its CDL utilizes technology to achieve the transformative purpose of improving content delivery, without encroaching on the the commercial entitlements of the rightsholder.
Only one patron can borrow each book at a time, and the one patron who borrowed a particular print copy from a library is entitled to read it, IA adds.
The second factor of fair use, where using material from factual works is more likely to be considered fair use when compared to fictional titles, is dismissed as less important by IA, with a note that the factor “has rarely played a significant role in the determination of a fair use dispute.”
On the third factor (the amount and substantiality of the portion used in relation to the copyrighted work as a whole), IA says that borrowing a book necessarily entails borrowing the whole thing. As a result, lending out a whole book is “reasonable in relation to the purpose of the copying.”
As to whether ebooks made available via CDL affect the potential market for the plaintiffs’ copyrighted works, IA says the benefits to the public are numerous with data showing that neither the publishers’ book sales nor their licensed library ebook lending saw any decrease in demand when their works were made available via CDL.
“For those reasons, CDL easily passes the ‘ultimate test of fair use,’ which asks ‘whether the copyright law’s goal of ‘promoting the Progress of Science and useful Arts,’ would be better served by allowing the use than by preventing it’,” IA adds.
If the Court finds that IA’s use of the publishers’ works was not fair, IA hopes that its status as a non-profit acting in good faith will be taken into consideration.
Judge John G. Koeltl responded by granting the parties’ requests to proceed with summary judgment motions. Opening summary judgment briefs are due early July, opposition briefs early September, and reply briefs early October.
The publishers’ and Internet Archive’s letters are available here (1,2, pdf)