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.