March 20, 2023
Statement of the Association of American Publishers on Oral Arguments in Infringement Suit Against Internet Archive
For more than 90 minutes this afternoon, Judge Koeltl of the United States District Court of the Southern District of New York heard oral arguments in the copyright infringement suit, Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House v. Internet Archive. We now await the decision of the Court, noting that it has before it an extensive record of law and facts that we believe support the position of the publisher plaintiffs and the authors that they represent.
In several filings, the publishers have documented the considerable and consistent precedent—in multiple circuits—against unauthorized copying and public distribution, particularly when it comes to transmitting entire creative works to members of the worldwide public without a license for the same purpose the works were originally published and in direct competition with established markets.
At stake are the livelihoods of authors and the statutory incentives and protections that make creative works possible in the first place.
Here are some key points made by publishers’ counsel and/or amicus curiae in the litigation thus far, including in oral arguments today:
– The defendant is engaged in an enterprise of digital theft. Its mass scanning of print books—and public display and distribution of those bootleg eBooks— are in direct contravention of the Copyright Act. It has blatantly accelerated its infringement in the two years since the case was filed.
– By engaging in massive and uncompensated “format-shifting” from print books to eBooks, the Internet Archive is robbing authors of their legal right to separately license the various and evolving formats that Congress intended.
– The Copyright Act serves the public interest by granting economic incentives to authors. Those incentives are in the form of copyright interests that they can market and monetize, including by granting their publication rights to publishers. Authors are central to the public purpose of the law.
– The Copyright Act is clear that the author’s right to determine public distribution includes the transmission of digital formats to members of the public who are accessing their works at different locations and different times, such as when a library patron accesses a digital book from the comfort of their own home. The publishers invested heavily in developing digital innovations, which result from confidence in the lawful marketplace, not mass infringement.
– The defendant erroneously insists it is only doing what libraries have always done. But libraries routinely license digital eBooks and do not manufacture eBooks themselves.
– The harm to authors and publishers is self-evident: the defendant both refuses to pay the fees that libraries customarily pay to provide precisely the same service and offers a competing substitute for the Publishers’ eBooks. Each lost sale results in a direct loss of income for authors.
– If left unchecked, the defendant’s conduct would cause substantial losses and seriously imperil Publishers’ ability to publish new books, support authors with a reliable stream of royalties and invest in new publishing technologies like authorized library eBooks.
– Its practice is not covered by statutory library exceptions, which allow qualified libraries to reproduce and distribute works under specific narrowly tailored conditions, and only when there is no indirect commercial advantage or interference with functional markets.
– The Internet Archive created out of whole cloth a legal fiction they refer to as “Controlled Digital Lending.” But the Defendant is not a legislative body and cannot simply make its own rules.
– The Internet Archive’s practice may start here with books, but by extension, could quickly threaten motion pictures, music, software, video games, and other works that enrich our society. For example, the catalog of music and film available in digital format is not limited to works “born digital” but includes works from back catalogs of analog music and film productions that have been carefully digitized and preserved and are now available in the marketplace for the public to stream, license, or buy.
– It is feasible that the country’s entire network of libraries could join or supply the Internet Archive, permitting it and them to “lend” for free thousands of copies of the bestsellers from every artistic industry—books, music, film, and more—all to compete with lawfully made licensable digital works and streaming services.
– The infringing acts undertaken by IA will occur not only in the U.S., but also abroad—anywhere that an eBook is made available—regardless of whether it is accessed.
– Internet Archive is distributing all manner of works without permission — fantasy, romance, and more. To the degree there is an educational component to the works they distribute, that is because of the contributions of the authors and publishers who created the works, not the defendant.