July 7, 2022
￼Publishers Seek Summary Judgment Against Internet Archive for Blatant Scanning and Distribution of Literary Works on Industrial Scale
Today, member companies of the Association of American Publishers (AAP) filed a motion for summary judgment in the copyright infringement lawsuit against Internet Archive (“IA”), first filed on June 1, 2020 in the United States District Court for the Southern District of New York.
Following two years of litigation, the motion for summary judgement establishes a clear record showing that both the law and the facts of the case are undisputedly in the publishers’ favor.
The filings show that IA’s illegal mass scanning, public display, and distribution of literary works are in direct contravention of the Copyright Act and in direct competition with lawfully licensed markets for both library and consumer eBooks. IA offers its unauthorized copies to the public at large through a global-facing enterprise coined “Open Library” and, previously, through a service dubbed the “National Emergency Library.” The defendant’s activities are part of a larger commercial enterprise that not only provides access to books but also adds to its bottom line. Between 2011 and 2020, IA made approximately $30 million from libraries for scanning books in their collections.
The plaintiffs — Hachette Book Group, HarperCollins Publishers, Penguin Random House, and Wiley — brought the lawsuit on behalf of themselves and their authors after the Internet Archive refused to halt its infringement of tens of thousands of their books.
“Outrageously, IA has wrapped its large-scale infringement enterprise in a cloak of public service, but that posture is an affront to the most basic principles of copyright law,” commented Maria A. Pallante, President and CEO, Association of American Publishers. “We hope and expect that the court will uphold established legal precedent, including by recognizing that formats are neither fungible nor free for the taking, but rather a key means by which authors and publishers exercise their copyright interests, develop new markets, and contribute to public progress.”
Authors Speak Out
“When I went on the Internet Archive’s website and saw that scans of my books were being distributed to anybody who wanted them for free – without my permission or any payment – I was appalled. I found the experience so viscerally upsetting that I could not stay on the website for long. It was like I had gone to a pawn shop and seen my stolen possessions on sale.
“The libraries that raised me paid for their books, they never stole them. Any libraries that want to provide eBook versions of my books to the public for free can do so because I have authorized Penguin Random House to license my work to any library that is willing to pay for the authorized digital formats. I consider Internet Archive’s distribution of my books to be a terrible violation of the control I have worked so hard to establish over my work.”
The suit names 127 literary works that include a stunning cross section of fiction, and non- fiction, books by such authors as Toni Morrison, Malcolm Gladwell, and Ann Patchett. The named works are a mere sample of more than 33,000 titles on Internet Archive’s site that belong to the four plaintiff publishers and their authors, and a mere sprinkling of the millions more that IA distributes with the abandonment of a pirate site.
As the Authors Guild noted in March 2020, “Despite giving off the impression that it is expanding access to older and public domain books, a large proportion of the books on Open Library are in fact recent in-copyright books that publishers and authors rely on for critical revenue. Acting as a piracy site—of which there already are too many—the Internet Archive tramples on authors’ rights by giving away their books to the world.”
IA’s Infringing Activity Has Only Increased Since Suit Was Filed
At the time that the suit was filed, IA had brazenly reproduced, and was offering for download, some 1.3 million bootleg scans of print books.
Since the suit was filed IA has dramatically accelerated the pace of its infringing activity, adding many thousands of scans from the publishers who brought the complaint against them, as well as titles belonging to other publishers. Today, IA makes more than 3 million in-copyright eBooks available for public consumption.
IA Encourages Libraries to Infringe
Like booksellers, public libraries play a vital role in strengthening local communities and fostering public literacy. For these reasons, most publishers make the vast majority of their authors’ adult trade books robustly available to libraries in print, audiobooks, and eBook formats immediately upon publication, even while they simultaneously seek to recoup their investments in tightly competitive consumer markets. To illustrate, Overdrive, the largest of the licensed digital reading platform for libraries and schools, reported that in 2021 “libraries achieved all-time records for circulation, while lowering the average cost-per-title borrowed,” with over “120 libraries reaching one million digital checkouts.”
Against this backdrop, IA encourages many of these same libraries to abandon eBook licenses in favor of theft. According to IA, joining its ranks as a Partner library “ensures that a library will not have to repurchase the same content repeatedly simply because of a change in format” or simply “You Don’t Have to Buy it Again!”
IA Attempts to Rewrite the Copyright Act, Unilaterally
In an attempt to rationalize its ongoing unlawful acts, IA and its advocates have concocted a baseless, one-sided “theory” dubbed “controlled digital lending.” Among other flaws, the theory flatly ignores the copyright interests of authors and publishers, subverts the authority of Congress, and contravenes appellate jurisprudence.
Contrary to IA’s assertions, the Copyright Act provides no colorable defense for willfully copying a massive number of in-copyright books, turning them into bootleg eBooks, and then making them freely available to the global public. In fact, IA sabotages the separate markets and business models made possible by the statute’s incentives and protections, robbing authors and publishers of their ability to control the manner and timing of communicating their works to the public. IA not only conflates print books and eBooks, it ignores the well-established channels in which publishers do business with bookstores, e-commerce platforms, and libraries for eBook lending. As detailed in the publishers’ June, 2020 complaint, IA makes no investment in creating the literary works it distributes and appears to give no thought to the impact of its efforts on the quality and vitality of the authorship that fuels the marketplace of ideas.
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AAP | The Association of American Publishers represents the leading book, journal, and education publishers in the United States on matters of law and policy, advocating for outcomes that incentivize the publication of creative expression, professional content, and learning solutions. As essential participants in local markets and the global economy, our members invest in and inspire the exchange of ideas, transforming the world we live in one word at a time. Find us online at publishers.org or on Twitter and Instagram at @AmericanPublish.