Last June, publishers Hachette, HarperCollins, John Wiley and Penguin Random House sued the Internet Archive for copyright infringement, describing its ‘Open Library’ as operating like a pirate site.
The Internet Archive (IA) sees things differently, noting that its ‘Controlled Digital Lending’ process operates for purposes including preservation, access and research, therefore meeting ‘fair use’ standards. In parallel, IA believes its liability is limited due to the safe harbor provisions of the DMCA.
As reported last week, IA wants the opportunity to show that its digital library lending had no negative effect on the publishers’ business.
To do that, IA wants access to sales data for the 127 books listed in the lawsuit, plus data on one or more comparable works that were not available for digital lending at the same time as those works. However, the parties cannot reach a compromise so IA is now demanding access to detailed book sales performance data for all books sold since 2011.
Publishers Respond to Internet Archive’s Request
In a new response to the court, the publishers reiterate their claims that IA operates “an illegal ebook distribution service” that threatens to “destroy the legal library ebook market”. The publishers say that they have already produced detailed sales and financial data for the 127 books in the lawsuit, totaling over 670,000 rows of data in Excel.
They say that IA now wants access to data related to more than 500,000 additional books, complaining that it only wants access because the data it has obtained thus far doesn’t support its theory of no market harm.
“IA argues it is entitled to [access the data] in order to see if any evidence might exist to support the inherently incredible theory that copying entire books and distributing them to any member of the public worldwide upon demand does not compete with Plaintiffs’ sales of the same books,” the publishers’ letter reads.
“Even worse, IA’s quest rests on the palpably false theory that it can quantify the harm caused by its infringement by comparing the sales of completely different books. Books are not interchangeable widgets and marketplace performance is driven by countless indeterminate and changing facts.”
Publishers: Fourth Factor Fair Use “Misinterpreted”
The publishers say they distribute their books to millions of readers around the world through many legal channels, including by selling or licensing ebooks to library aggregators which allow library patrons to borrow ebooks on their devices for free, subject to limitations. However, they insist that IA’s argument that its lending practices do not affect the commercial performance of books misinterprets the fourth factor of the fair use analysis.
“The fourth factor looks beyond lost sales and focuses instead on the effect of the [infringing use] upon the potential market for or value of the copyrighted work,” and requires consideration of “not only … the market harm caused by the particular actions of the alleged infringer, but also the market harm that would result from unrestricted and widespread conduct of the [same] sort,” they write.
“Here, IA self-evidently harms Plaintiffs’ existing markets by refusing to pay the customary fees that aggregators pay to distribute the same ebooks to library borrowers. The market harm compounds as others engage in the activity, destroying the vibrant market for licensed library ebook lending that currently exists. None of the requested data, or so-called ‘comparables,’ is necessary to or even related to this category of market harm.”
Data Sought is “Not Material”, Creates a Massive Burden
The publishers say that producing sales data beyond that relating to the works in suit is not only “burdensome in the extreme” but also “irrelevant”.
They dismiss IA’s claims that there would be no burden in producing the data as “preposterous” since it would require them to pull masses of data from multiple databases in a way they would not do in the ordinary course of business. This would incur “incalculable” employee time and significant resources to compile what could amount to billions of rows of data.
In addition, the publishers say that the entire request for data rests on the false premise that books can be compared to each other and discounts events that inflate sales, such as an author dying, a book being made into a movie, or receiving a great review.
“In short, it is impossible to calculate the market harm of IA’s infringement based on the crude comparison IA proposes because there are innumerable reasons why one book sells more copies than another that have nothing to do with IA’s infringement. IA’s demand for this massive data rests on no coherent foundation. It should be denied,” they conclude.
The publishers’ letter can be found here (pdf)