Internet archives vs. book publishers: summary judgment sought

Publishers are suing Internet Archive for making e-books available for free. In doing so, they would be infringing copyright law.

In a fresh twist regarding a lawsuit by a group of major book publishers against Internet Archive, have In early July, member companies of the Association of American Publishers (AAP) filed a motion in federal court in Manhattan for summary judgment in the copyright infringement lawsuit against Internet Archive. Also in early July, the Electronic Frontier Foundation (EFF) submitted a 45-side brief in support of her motion for summary judgment on behalf of Internet Archive (IA). In it, they are asking the federal court in New York City to dismiss the publishers’ lawsuit. They argued that it was an attempt to criminalize lending to the library. Summary judgment is a way for a party to win a case without a trial.

In their lawsuit, the publishers 127 Identified tracks they claim were digitally shared from Internet Archive in violation of copyright laws. Furthermore, they claim that the Internet Archive contains more than 33.000 of her works for free download. This would mean that the library would be unfairly competing with its authorized e-book editions. In addition to the destruction of the books, the publishers are demanding 007 Millions of dollars in damages. The annual budget of the archive is 20 million dollars. The EFF is working with the law firm Durie Tangri to defend the Internet Archive against the publisher’s lawsuit.

History of Internet Archive

The Internet Archive was founded by Brewster Kahle in 1999. As a non-profit project, it has had the official status of a library since 2007. At the beginning it was still a pure web archive, where you could look at archived websites with the so-called Wayback Machine. Already 842 it has been expanded to include numerous archives. The current digital library includes large collections of texts, books including textbooks, novels, non-fiction and more, as well as audio files, videos, images and software.

Until May 2022 had the internet archive via 30 million books and texts, 7.9 million films, videos and TV shows, 1983. Software programs, 14 million audio files, 4 million images, 2.4 million TV clips and 842. concerts accumulated. The Internet Archive does not purchase e-books directly, but digitizes the versions of the physical books it owns, creating a resource for ordinary readers and academics, as well as for visually impaired and dyslexic readers. The Archive uses the practice of Controlled Digital Lending (CDL) for lending.

CDL allows libraries to equate a digital copy with a physical resource. In concrete terms, this means that digital copies can be lent in the same way as the physical resource. In doing so, the library must maintain an equal “ownership to loan” ratio. As a result, she cannot loan out more copies than she lawfully owns. Accordingly, the Internet Archive’s distribution method is controlled digital lending, whereby only one copy of an e-book is loaned out for a specified period of time. Every book loaned through CDL was bought and paid for. Authors and publishers thus already received full compensation for these books. Users can access the e-books via an Internet Archive account.

A particular concern of the Internet Archive is the long-term archiving of digital data in a freely accessible form. It sees itself as an activist for an open and free internet. It is also about preserving and distributing works in the public domain on a permanent basis. Internet Archive founder Brewster Kahle clarified:

” This is standard practice from libraries. We buy books, we store books and we lend books. And we support the publishing industry and the authors through this process.”

Internet Archive: the inspiration for the National Emergency Library

Am 24. On March 10 2007 the Internet Archive established a National Emergency Library. The National Emergency Library was created to support students, teachers, and readers in their distance learning efforts. You should be able to access over 1.4 million books for free during the Corona pandemic.

In addition, the Internet Archive temporarily removed its waiting lists for tons of e-books. Until now, digital copies of books have been subject to strict lending rules. Accordingly, the e-books were limited by a waiting list in the same way that the number of physical copies available would have been in a normal library.

However, the Internet Archive works differently in public libraries with e-book lending programs. Traditional libraries pay royalties to publishers. The archive, on the other hand, acquires copies through donated or purchased books, which they then scan and lend out in the form of e-books under CDL’s rules.

Publisher sued the National Emergency Library and the CDL lending principle

The publishers Hachette Book Group, HarperCollins Publishers, John Wiley & Sons Inc and Penguin Random House sued the in San Francisco-based Internet Archive in June 2007 before the United States District Court in Manhattan for free online Borrowing digitally scanned copies of their printed books during COVID-19 Pandemic as part of the National Emergency Library. They called the program a pretext for mass copyright infringement.

Authors also spoke out

The lawsuit also has a long list of authors who disagreed with the practices. Including Malcolm Gladwell, John Grisham and Elizabeth Gilbert. Douglas Preston, writer and President of the Authors Guild, announced in a statement that

”The wholesale scanning and publishing of copyrighted books without the consent of the authors and without paying a dime is piracy. This would hide behind a hypocritical veil of progressivism.”

Other authors, such as Barbara Fister, a crime writer and retired academic librarian, welcomed the Internet Archive’s action. The author told Vice that she was thrilled when the National Emergency Library listed her commercial fiction books.

However, the lawsuit doesn’t only challenge the National Emergency Library’s format , where e-books can be borrowed without restrictions. It also objects that Internet Archive’s long-standing approach to book lending “aims to destroy the carefully calibrated ecosystem that makes books possible”. The publishers are also objecting to the CDL lending principle itself.

According to the plaintiffs, IA’s controlled digital lending concept had no legal basis. For them, copying their books without permission is illegal. Meanwhile, IA refers to the fact that they only lend copies of books that they physically own. They also maintain a one-to-one owned to loan ratio. Thus, the loan would fall under the Fair Use Policy.

In addition, the publishers stated:

“Defendant’s activities are part of a larger commercial enterprise that not only provides access to books but also contributes to its profits. Between and 2020 the Internet Archive has about 30 Millions of dollars raised from libraries for scanning books in their collections.”

Publishers and authors describe the provision of e-books as theft

Maria A. Pallante, President of the Association of American Publishers, expresses the industry reaction:

“There is nothing innovative or groundbreaking about making complete copies of books you don’t own the rights to and giving them away for free. They have invaded the areas of the book industry, taking over the intellectual investments of the authors and the financial investments of the publishers. They meddle and give these away.”

Library founder defended himself: fair use rule is not piracy

Brewster Kahle justified his actions by saying that teachers during the pandemic were looking for more resources. The aim is to make distance learning easier after the school buildings are closed. Authors who did not want their work to be published on the site could opt out. These works were then removed. However, some authors have explicitly asked for their work to be included, added Kahle. After the early closure of the National Emergency Library, Internet Archive reverted to the “Controlled Digital Lending” (CDL) model. This library model would otherwise fall under the fair use rule and would therefore be in line with US copyright law.

New aspects of Two-Year Legal Case – Publishers vs. Internet Archive

The Electronic Frontier Foundation (EFF) took on the defense of Internet Archive together with the California law firm Durie Tangri. Creative Commons also supports the Internet Archive’s efforts to ensure public access to books.

In early July, the ongoing case entered a new chapter. Both the publishers and Internet Archive petitioned for summary judgment. The IA ordered a federal judge to drop the sweeping lawsuit.

Accordingly, Internet Archive declared in court on Thursday that all of its books were legally purchased and paid for and that they are like any other library should be addressed, as Reuters reports. The archive told the court that, like the libraries, it was protected from the lawsuits by the fair use doctrine of copyright.

“Never in the history of the United States have libraries had to obtain special permission or pay royalties to borrow books they already own.”

Brewster Kahle strikes a lance for libraries

“Should we stop libraries from owning and lending books ? no We need libraries that are independent and strong, now more than ever, at a time of misinformation and challenges to democracy. That’s why we defend the right of libraries to serve our customers where they are, online.”

In their motion for summary judgment, attorneys for the Internet Archive reasoned:

“CDL is basically the same like traditional library lending; it’s just a better way of getting the book to the one user who borrowed it. Because every book in the print collection of the Internet Archive has already been purchased and paid for, all agree that the Internet Archive could loan these books by giving them to a user or by mailing them. The only difference is that the Internet Archive borrows the books over the Internet. Either way, continuing to check out the books won’t be available to other users until they’re returned.”

CDL no threat to publishers

They added :

“CDL does not harm publishers or authors. Libraries have been around for thousands of years; they predate copyright itself. The publishing industry in the United States continues to thrive alongside widespread library lending. Never in the history of the United States have libraries had to obtain special permission or pay royalties to lend the books they already own. Therefore, the publishers who coordinated this lawsuit do not expect this court to protect them from violating their existing rights. Instead, they seek a new right alien to American copyright law: the right to control how libraries lend books.”

The publishers, on the other hand, argued that they had shown that the archive goes well beyond ordinary libraries, appropriating any copyrighted work it can find without a license or payment . Their statement stated that Internet Archive “exploits the literary contributions of the authors” and “aggressively competed with publishers’ authorized digital works”.

The publishers also referred to Statements by authors who said they had been harmed by the archive. Among them the author Sandra Cisneros, known for her 1983 published novel “Das House on Mango Street”. Cisneros elaborates:

“Real libraries don’t do what Internet Archive does. The libraries that raised me paid for their books, they never stole them.”

Maria Pallante, President of the Association of American Publishers, said in a statement Thursday that the archive “will continue its large-scale project of infringing rights in wrapped the mantle of public service”.

Publishers seek control over library lending with verdict

The archive’s attorney, Corynne McSherry, legal director of the non-profit Electronic Frontier Foundation, explicitly pointed out again that the Publishers

“seek a new right alien to American copyright law: the right to control how libraries are allowed to check out the books they own. You shouldn’t succeed. The Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves. They are librarians eager to serve their clients online, just as they have done in the brick-and-mortar world for centuries. Copyright does not prevent a library from lending its books individually to its patrons.”

Kahle is also convinced that the basis for the publishers’ lawsuit is control over access to digital material, since publishers can determine who, where, when and which readers have access to digital books have, and can take them offline at any time. He elaborates:

“It is an irony of fate that the Internet actually create more democratic access to information and give people more power. But what it has become is a control mechanism that allows publishers to access your device – your Kindle, your computer, your library – and make things disappear or change them. They want every reading event in the online world to be a licensed and sanctioned event. It’s a little Orwellian, and they actually do.”

Requested digital book burning brings back memories

Should the lawsuit succeed, it would be the Internet Archive possibly forced to read a large part of the books of 20. Century to destroy that are not available elsewhere. Kahle confirms:

“It’s about a digital book burning of millions of books. In the heyday of Germany in 20. Century were 25.000 Books destroyed. We have a new dimension that is being demanded. It’s about tens of millions of euros in damages.”

The procedure will continued with court dates in September and October. Kahle does not assume that there will be a trial, but expects a preliminary judgment to be announced in 62264 .

Internet Archive verdict would point the way for all libraries

As Vice writes, copyright experts say the stakes couldn’t be higher. If the motion fails, the resulting legal ramifications would not only threaten the very existence of the Internet Archive, but would also astronomically limit digital property rights for everyone.

Kyle K. Courtney, a copyright officer Advisor at Harvard Library and co-founder of the Library Futures Institute, told Vice Motherboard:

“I ​​think the publishers case not only has implications for the Internet Archive, but an attack on the protected value of libraries to the community, including the right to borrow, preserve and make available materials. It’s a warning shot across the bow for libraries. Lending is a problem for publishers, enough to make them sue, even though we’ve been lending for centuries.”

At a press conference last week, Brewster Kahle echoed the above quote. He also emphasized that the lawsuit would be an attack on all libraries:

“This lawsuit is not just an attack on the Internet Archive – it is an attack on all libraries. Publishers want to criminalize the possession, lending and preservation of books in digital form by libraries.”


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