Monday, June 01, 2020

Publishers sue Internet Archive over Book Scanning (Plus Filing)

Plaintiffs Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House are suing the Internet Archive (IA) for copyright infringement over the "National Emergency Library" which IA launched to great fan fare earlier this year.   The suit alleges that 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." without permission or financial consideration.

From the press release:
Despite the self-serving library branding of its operations, IA’s conduct bears little resemblance to the trusted role that thousands of American libraries play within their communities and as participants in the lawful copyright marketplace. IA scans books from cover to cover, posts complete digital files to its website, and solicits users to access them for free by signing up for Internet Archive Accounts. The sheer scale of IA’s infringement described in the complaint—and its stated objective to enlarge its illegal trove with abandon—appear to make it one of the largest known book pirate sites in the world. IA publicly reports millions of dollars in revenue each year, including financial schemes that support its infringement design.
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.
“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.”
Add: Here is the filing via InfoDocket.

While the Author Guild isn't a party to this filling (yet?) the have also released an open letter condemning the IA and its actions.
The National Emergency Library is piracy, pure and simple, no matter how the Internet Archive and its founder Brewster Kahle cloak it as a social benefit. Making hundreds of thousands of copyrighted books available for download is theft. It is illegal and it needs to be shut down.
For those interested, here is the summary of the legal resolution to the Google scanning case (via wikipedia):
Authors Guild v. Google is a copyright case litigated in the United States. It centers on the allegations by the Authors Guild, and previously by the Association of American Publishers, that Google infringed their copyrights in developing its Google Book Search database.  In late 2013, U.S. Circuit Judge Denny Chin (sitting by designation) dismissed the lawsuit, and affirmed that the Google Books program meets all legal requirements for "fair use," [1] in what Publishers Weekly called a "ringing endorsement" of Google.[2] The Authors Guild appealed the ruling to the Second Circuit, in New York, which held oral arguments in late 2014. On October 16, 2015, the Second Circuit "rejected infringement claims from the Authors Guild and several individual writers, and found that the project provides a public service without violating intellectual property law."[3] The Authors Guild petitioned the US Supreme Court,[4] which in April 2016 declined to review the case, leaving the lower court's decision standing.[5]
Today's case is different but may hinge on some of the same arguments and include 'first sale doctrine' arguments.

Selected snips from the filing:

3. Despite the “Open Library” moniker, IA’s actions grossly exceed legitimate library services, do violence to the Copyright Act, and constitute willful digital piracy on an industrial scale. Consistent with the deplorable nature of piracy, IA’s infringement is intentional and systematic: it produces mirror-image copies of millions of unaltered in-copyright works for which it has no rights and distributes them in their entirety for reading purposes to the public for free, including voluminous numbers of books that are currently commercially available.

6. "For the avoidance of doubt, this lawsuit is not about the occasional transmission of a title under appropriately limited circumstances, nor about anything permissioned or in the public domain. On the contrary, it is about IA’s purposeful collection of truckloads of in-copyright books to scan, reproduce, and then distribute digital bootleg versions online.
IA often suggests that the Website is limited to twentieth-century books, but this is neither accurate nor a defense. IA scans, uploads, and distributes huge numbers of in-copyright books published in both the twentieth and twenty-first centuries, including many books published within just the past few years. 

7. Moreover, while Defendant promotes its non-profit status, it is in fact a highly commercial enterprise with millions of dollars of annual revenues, including financial schemes that provide funding for IA’s infringing activities. By branding itself with the name “Open Library,” it thus badly misleads the public and boldly misappropriates the goodwill that libraries enjoy and have legitimately earned.

8. IA defends its willful mass infringement by asserting an invented theory called “Controlled Digital Lending” (“CDL”)—the rules of which have been concocted from whole cloth and continue to get worse.... provision under copyright law offers a colorable defense to the systematic copying and distribution of digital book files simply because the actor collects corresponding physical copies. 

9. In short, Defendant merely exploits the investments that publishers have made in their books, and it does so through a business model that is designed to free-ride on the work of others.

11. No concept of fair use supports the systematic mass copying or distribution of entire books for the purpose of mass reading, or put another way, for the purpose of providing to readers the very thing that publishers and authors provide in the first place through lawful and established channels. IA does not add something new to the Plaintiffs’ books, with a different purpose or character; thus, it cannot even begin to make the all-important showing that its use of the works is transformative. Separately, Section 109 of the Copyright Act is clear that, pursuant to the doctrine of first sale, the owner of a lawfully acquired print book may dispose only of her/his particular print copy. One who makes and distributes reproductions of that physical copy—such as IA’s low quality scans—is well outside the bounds of the law. 

13. Its 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 

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