US book publishers sue Internet Archive for 'willful mass copyright infringement'

By Emmanuel Legrand

The Association of American Publishers (AAP) — acting on behalf of US book publishers Hachette Book Group, HarperCollins, Penguin Random House and John Wiley & Sons — has started on June 1 legal action against the Internet Archive for setting up a so-called National Emergency Library, which made 1.3 million books available for free in digital format at the start of the coronavirus pandemic in March. The publishers claim in the lawsuit, filed in the United States District Court for the Southern District of New York, that the Internet Archive "is engaged in willful mass copyright infringement."

  The publishers argue that “without any license or any payment to authors or publishers, Internet Archive scans print books, uploads these illegally scanned books to its servers, and distributes verbatim digital copies of the books in whole via public-facing websites.”

  In a statement, the AAP said, "In willfully ignoring the Copyright Act, IA conflates 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, including for print and eBook lending. As detailed in the 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."For publishers, the system system is set up so that “with just a few clicks, any Internet-connected user can download complete digital copies of in-copyright books."

 Destroy the ecosystem

  The 53-page lawsuit reads: "[IA's] goal of creating digital copies of books and providing them to whomever wants to download them reflects a profound misunderstanding of the costs of creating books, a profound lack of respect for the many contributors involved in the publication process, and a profound disregard of the boundaries and balance of core copyright principles. IA does not seek to 'free knowledge'; it seeks to destroy the carefully calibrated ecosystem that makes books possible in the first place — and to undermine the copyright law that stands in its way."

  Plaintiffs are seeking a declaration that the practices of IA in connection with Open Library "constitute willful copyright infringement," a permanent injunction against the library and an statutory damages "for in an amount based upon Internet Archive’s willful acts of infringement of the Works."

 

  "As a library, the Internet Archive acquires books and lends them, as libraries have always done," reacted Brewster Kahle, founder of the Internet Archive and initiator of the Emergency Library, said in a statement. "This supports publishing, authors and readers. Publishers suing libraries for lending books, in this case protected digitized versions, and while schools and libraries are closed, is not in anyone's interest. We hope this can be resolved quickly."

Disrespect for copyright value chain

  AAP President and CEO Maria A. Pallante (pictured, below) said the complaint "illustrates that Internet Archive is conducting and promoting copyright infringement on a massive scale" and that it had operated "with profound disrespect for the value chain of copyright, in which authors, publishers, bookstores, platforms, educational institutions and libraries work together for the benefit of society, whether during prosperity or a pandemic."

  She added, “Regrettably, it seems clear that Internet Archive intends to bludgeon the legal framework that governs copyright investments and transactions in the modern world. As the complaint outlines, by illegally copying and distributing online a stunning number of literary works each day, IA displays an abandon shared only by the world’s most egregious pirate sites.”

  The Authors Guild, which has started a petition asking the IA to take down the Emergency Library, welcomed the legal action by publishers. "The Internet Archive hopes to fool the public by calling its piracy website a 'library'; but there's a more accurate term for taking what you don't own: 'stealing'," said Douglas Preston, president of The Authors Guild. "What Internet Archive is doing is no different than heaving a brick through a grocery store window and handing out the food — and then congratulating itself for providing a public service. It's not a public service to violate the rights of thousands of hard-working authors, most of whom desperately need the income."

Disregard for the rights of creators

  On May 15, the US Copyright Office weighted in, with Acting Register of Copyright Maria Strong responding to an April 16 request from Senator Tom Udall (NM). In her response, Strong wrote that "it would have been beneficial for the Internet Archive to engage with writers and publishers prior to launching the National Emergency Library to discuss the contemplated parameters for the project and determine their willingness to participate." She also invited the IA to "explore opportunities for collaboration with writers and publishers, for example by allowing them to opt into making digital versions of their works publicly available for a certain period under specified conditions."

  Copyright Alliance CEO Keith Kupferschmid, noted that, to date, IA has "illegally reproduced more than 1.3 million scans of books for the purpose of distributing them to the public in direct contravention of the rights of authors and publishers" and that these activities "IA’s Open Library and National Emergency Library bear little resemblance to a traditional library or to the new age library of the 21st Century."

  He added, "IA would like the public to believe that the books are rare and older titles used for research, but in reality, they are scanning and distributing recent works, fiction and non-fiction, thrillers and kids’ books — all without the authority of publishers and authors and well beyond the scope of what is permitted by copyright law. These activities — which are done in spite of the fervent objections of publishers and authors throughout the country — demonstrate a complete disregard for the rights of authors and publishers, for traditional libraries that follow long-standing book lending protocols, and for members of Congress who have carefully crafted America’s copyright laws to balance the rights of creators with the interests of traditional libraries."