Four Publishers File Suit Over Internet Archive’s Pirate Site

I can’t beleive it – book publishers have given Internet Archive founder Brewster Kahle exactly what he wanted.

Today the AAP announced that four US publishers – HarperCollins, Wiley, Hachette, and Penguin Random House – have filed suit against San Francisco-based Internet Archive.

Today, member companies of the Association of American Publishers (AAP) filed a copyright infringement lawsuit against Internet Archive (“IA”) in the United States District Court for the Southern District of New York. The suit asks the Court to enjoin IA’s mass scanning, public display, and distribution of entire literary works, which it offers to the public at large through global-facing businesses coined “Open Library” and “National Emergency Library,” accessible at both openlibrary.org and archive.org. IA has brazenly reproduced some 1.3 million bootleg scans of print books, including recent works, commercial fiction and non-fiction, thrillers, and children’s books.

The publishers are suing because the Internet Archive is “lending” unlicensed copies of scanned books. It had been distributing the pirated works without limit since late March 2020 via the National Emergency Library, and they had been distributing in a more limited form since 2013 via The Open Library.

As I have previously explained, the IA has no legal defense for the National Emergency Library, and only an untested legal argument to defend the practices of The Open Library. (That untested legal argument is called CDL, and I wouldn’t put too much weight into it given that university libraries aren’t convinced it’s legal.)

The full complaint can be seen here.

I am a little surprised at this lawsuit. I have been waiting for almost two and a half years for publishers to sue over The Open Library (since it first really started getting attention), only to reach the tentative conclusion that publishers weren’t going to sue because they weren’t sure they could win in a legal fight where losing meant that copyright law would be rewritten.

While there is zero chance that the Internet Archive could win on the point of the National Emergency Library’s uncontrolled lending, the IA might still win a partial victory where CDL is found to be legal.

If you want to argue that CDL can’t possibly be legal, I would remind you that Google Books wasn’t legal – until, suddenly, it was. (I would also remind you that the ReDigi lost its case and still got a ruling that legalized the resale of music and other digital content.)

I had thought that publishers were avoiding testing CDL in court, but I guess National Emergency Library was too much for them, so four publishers have sued.

And that is exactly what Brewster Kahle wanted.

image by Mario A. P. via Flickr

Nate Hoffelder

View posts by Nate Hoffelder
Nate Hoffelder is the founder and editor of The Digital Reader. He has been blogging about indie authors since 2010 while learning new tech skills weekly. He fixes author sites, and shares what he learns on The Digital Reader's blog. In his spare time, he fosters dogs for A Forever Home, a local rescue group.

10 Comments

  1. tired2 June, 2020

    Well you are so sadly wrong.

    The issue with Google Books is that it was argued that digitizing books was transformative.

    ReDigi lost its case DOUBLY OVER. Your analysis is just wrong. The second circuit affirmed the decision (see here: http://www.lawjournalnewsletters.com/2019/03/01/second-circuit-affirms-redigi-no-resale-of-digital-music-files/?slreturn=20200502072148) because unlike Google Books what they did is not trans-formative it is just copying.

    Have you ever thought that maybe publishers weren’t going to sue the Internet archive because it wasn’t worth the expense (and not because they didn’t think they could win), until the IA forced their hand by just giving a way books that are not theirs to give away?

    If anything the ReDigi case makes this in easy win for publishers. The pirated ebooks were already digitized and available on other platforms. IA wasn’t doing anything transformative, they were simply pirating. I don’t see even a partial victory.

    You’ve just misread this. Period. And even if you didn’t in what world does a small company consider a lawsuit against several large companies that can just grind the smaller into the ground like a Dickensian tragedy “playing into their hands?” Are you mental?

    Reply
    1. Nate Hoffelder2 June, 2020

      The fine print in that ReDigi ruling said that you can’t resell a digital file but you can resell the hard disk space the file is sitting on. That effectively legalized resale, and in fact ReDigi changed their operations to comply with the new rules. They even got a patent on it.

      Reply
  2. Chris Meadows2 June, 2020

    Not a lawyer, but my layman’s understanding of the law leads me to doubt that any court would ever find Controlled Digital Lending to be a fair use. All four factors of the litmus test weigh against it.

    Remember, the four factors are:

    the purpose and character of your use
    the nature of the copyrighted work
    the amount and substantiality of the portion taken, and
    the effect of the use upon the potential market.

    Purpose and character: This use is not transformative in any major way; it simply copies the entire work to digital. Not being transformative weighs against fair use.

    Nature of the work: This includes fiction works, and fiction works have a higher bar to clear than factual works. Including fiction weighs against fair use.

    Amount and substantiality: It takes the whole work, meaning it’s less likely to be fair than if it just excerpted. Taking the whole work weighs against fair use.

    Effect of use on the market: This is the biggest factor for CDL, I think—if libraries are permitted to do this, it will utterly wipe out the publishers’ library ebook sale programs. Why would a library pay a small fortune for ebooks that expire after a set number of checkouts if they could just buy extra paper books and warehouse them and then check those ebooks out forever? It could also have a depressive effect on sales of regular ebooks by making digital ones so broadly available. Threatening to wipe out an entire market weighs heavily against fair use.

    If Kahle thinks that he can get courts to find in favor of CDL just because Google won its own lawsuit, he’s badly fooling himself.

    Reply
    1. Disgusting Dude2 June, 2020

      Google won the “final version” of their lawsuit because they were only *distributing* snippets. The full scans were merely an intermediate step that wasn’t distributed. IA is distributing the full product not excepts. And the purpose of IA is openly intended to replace the commercial product.

      The bulk of copyright violations are about distribution and competing with paid distribution of the same content. Hence parodies and light pastiche are fair use but full derivatives aren’t.

      This is no different from tbe folks that don’t pay taxes because they don’t approve of how tbe money is spent. Handwaving is no substitute for an actual law.

      Reply
    2. Nate Hoffelder2 June, 2020

      CDL is one step away from the legal doctrine that Haithitrust and university libraries currently operate under. The difference is that Hathitrust can only lend copies of its scanned catalog to people inside one of its member libraries, while CDL allows lending to anyone.

      That is a small difference, and I think a judge mightt be convinced to accept that one step.

      Reply
      1. Disgusting Dude2 June, 2020

        How many of those books are active commercial books?
        How many are fiction?
        How many are distributed outside library premises?

        As pointed out above: look to the four tests for fsir use.
        IA fails all four.

        Reply
      2. Chris Meadows2 June, 2020

        But has that legal doctrine ever been tested in court?

        I mean, I know you could make a case based on it being legit to “space shift” CDs to MP3s, but that’s for personal use only. Anyway, I don’t think the fair use copyright test is incremental, it’s based on the gestalt of the four factors—which, as I indicated above, don’t fall on the Internet Archive’s side at all.

        Reply
        1. Nate Hoffelder2 June, 2020

          in the HathiTrsut lawsuit, yes
          https://www.hathitrust.org/authors_guild_lawsuit_information

          I’ve only scanned the ruling, but I think it really weakened any argument the IA could make.

          Reply
  3. […] work. The WaPo published an uncredited editorial on Tuesday on the lawsuit that four publishers filed last Monday against the Internet Archive. This editorial stopped one step short of calling for actively […]

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  4. […] buys and scans used print copies, and then shares copies of the scans. (This is why four publishers filed a copyright infringement lawsuit last […]

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