The non-profit Internet Archive ( IA ) aims to preserve digital history for generations to come.

The organization literally archives key parts of the Internet, copying older versions of websites to preserve them for future generations. This information becomes more and more valuable as time passes by.

IA has plenty of other archive projects too. For example, it operates a library that offers a broad collection of digital media, including books, which patrons can borrow upon request.

Thousands of libraries have digital lending services but IA’s approach is different. The organization doesn’t license authorized digital copies from publishers; instead, its books are scanned and digitized in-house. Each copy can only be loaned to one person at a time, to mimic the lending attributes of physical books.

Lawsuit and Appeal

Internet Archive believes that its approach falls under fair use but publishers Hachette, HarperCollins, John Wiley, and Penguin Random House disagree. They filed a lawsuit in 2020 equating IA’s controlled digital lending operation to copyright infringement.

Earlier this year a New York federal court concluded that the library is indeed liable for copyright infringement . The court’s decision effectively put an end to IA’s self-scanning library, at least for books from the publishers in suit.

IA is not letting go without a fight and in December the non-profit filed its opening brief at the Second Circuit Court of Appeals, hoping to reverse the judgment. Among other things, IA argued that its lending activity causes no financial harm is substantially different from the ebook licensing market.

Fearing a ‘Napster moment’ for books , the publishers rejected the notion that outsiders can run their own digitization programs and operate distribution platforms, without rightsholders being involved. Rightsholders should remain in control of all digital copies to be monetized on their terms.

Both sides were supported by amicus briefs from interested parties, a clear indication of what’s at stake in this dispute. Before the court case moves forward, however, IA replied to the publishers’ Napster comments and other critiques.

IA Points Out ‘Critical Misconceptions’

The Archive maintains that its lending service is fair use. The organization points out that the publishers have several misconceptions about its service.

IA points out that it doesn’t lend out digital copies without limits. For each physical book, it will only lend a single digitized copy at the time. This fixed “owned-to-loaned ratio” sets it apart from many of the copyright-infringing services mentioned by the publishers..

“Controlled digital lending is not equivalent to posting an ebook online for anyone to read or copy or to peer-to-peer file-sharing by companies like Napster. Neither practice is based on use of a library’s lawfully acquired physical copy, and neither ensures that only the one person entitled to borrow the book (or recording) can access it at a time.”

IA further notes that it has no profit motive, which differs from companies that resell digital copies without permission. In addition, the enormous work that goes into digitizing the books makes it hard for others to do the same, so fears of a flood of similar services are overblown.

“[B]ecause of the huge investment required to operate a legally compliant controlled lending system and the controls defining the practice, finding fair use here would not trigger any of the doomsday consequences for rightsholders that Publishers and their amici claim to fear,” IA writes.

Libraries Have Broad Missions

The brief goes on to counter the publishers’ “cramped” view of what libraries are for. Libraries are not just outfits that lend physical books to people nearby; their missions are much broader.

IA says that libraries make books available to a broad public, no matter their social status or location. They also preserve books for future generations and ensure that readers can enjoy books without giving up their privacy.

“Libraries provide readers more egalitarian access to a wider range of books, overcoming socioeconomic and geographic barriers by sharing resources with other libraries through interlibrary loans.”

“They also build permanent collections to preserve books, including older editions, for future generations. And they protect reader privacy, preventing disclosure of patron records that could chill access to information,” IA adds.

IA’s lending service advances this mission and was launched, in part, because the current ebook licensing schemes are seen as too restrictive.

A “Copyright” Balancing Act

The parties broadly agree on what the lending program entails and how it operates from a technical perspective. However, it’s the purpose and consequences that mostly determine whether a service is ‘fair use’, and here they have diametrically opposing views.

The publishers have argued that IA offers digital copies of their books without permission, which directly competes with its legal licensing business.

IA, in turn, doesn’t deny that copyrights play a role but stresses that its controlled lending is fair use. The reply highlights several arguments to make this point and concludes that the scale clearly tips in its favor.

The reply brief notes that the lower court didn’t properly balance the interests required by copyright law, largely overlooking the benefits the service has to the public at large, while strongly focusing on the financial aspect of copyright instead.

“[The District Court] decision barely mentions copyright’s ultimate purpose of ‘promoting broad public availability of literature, music, and the other arts’. Publishers do not deny that IA’s use serves this purpose; instead, they ask the Court to ignore that service and focus instead on copyright’s financial incentives for creativity.”

IA cites the Warhol Supreme Court case which made clear that fair use is a balancing act between the interests of the public and rightsholders. In this case, it believes that the balance favors its lending service.

“Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The district court’s failure to consider the latter contravenes decades of precedent recognizing that rewards are a secondary consideration, while promoting availability is primary,” IA informs the court.

“Here, the record shows that the balancing act between these purposes is better served by allowing the use than by preventing it,” IA concludes.

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A copy of the Internet Archive’s reply brief, submitted at the Second Circuit Court of Appeals, is available here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

Read 14 remaining paragraphs | Comments

The Internet Archive (IA) is a non-profit organization that aims to preserve digital history for generations to come.

The digital library is a staunch supporter of a free and open Internet and began meticulously archiving the web over a quarter century ago.

In addition to archiving the web, IA also operates a library that offers a broad collection of digital media, including books. Staying true to the centuries-old library concept, IA patrons can also borrow books that are scanned and digitized in-house.

Publishers vs. Internet Archive

The self-scanning service offered by the Internet Archive (IA) differs from the licensing agreements entered into by other libraries. Not all publishers are happy with IA’s approach, resulting in a major legal battle two years ago.

Publishers Hachette, HarperCollins, John Wiley, and Penguin Random House filed a lawsuit, equating IA’s controlled digital lending (CDL) operation to copyright infringement. Earlier this year a New York federal court concluded that the library is indeed liable for copyright infringement .

The court’s decision effectively put an end to IA’s self-scanning library, at least for books from the publishers in suit. However, IA is not letting this go without a fight and in December the non-profit filed its opening brief at the Second Circuit Court of Appeals, hoping to reverse the judgment .

High Profile Support

The importance of this legal battle is illustrated by the large number of amicus briefs that are filed by third parties. Previously, IA received support from copyright scholars and the Authors Alliance, among others.

A few days ago, another round of amicus came in at the Court of Appeals, this time to back the publishers who filed their reply last week . In more than a handful of filings, prominent individuals and organizations urge the Appeals Court not to reverse the district court ruling, arguing that this would severely hamper the interests of copyright holders.

The briefs include positions from industry groups such as the MPA, RIAA, IFPI, Copyright Alliance, the Authors Guild, various writers unions, and many others. Legal scholars, professors, and former government officials, also chimed in.

RIAA, MPA, et al.

The RIAA and MPA submitted an amicus brief together with the NMPA and the News Media Alliance. These industry groups draw a parallel between the impact Napster and BitTorrent had on music and movie sales, and the threat IA’s self-scanning library poses today.

“Digital piracy has inflicted a huge economic toll on those industries and, by extension, on their ability to invest in new creative works and the artists who make them. Internet Archive’s theory of fair use represents a threat just as grave.”

Industry groups fear that if the Internet Archive is allowed to digitize and lend books, it could set a precedent for other forms of media. For instance, if services were able to lend music, movies, or news media to the general public, these industries might face similar challenges.

“Deeming Internet Archive’s mass reproduction and distribution program to be fair use would no doubt embolden not only Internet Archive itself but also other online platforms to freely ‘lend’ all types of copyrighted works to the public in digital formats,” they write.

“That would catastrophically harm the digital markets on which the music industry, the movie and television industry, the news industry, and similar industries depend to profitably create and distribute their works—and would thereby undermine the incentive for the creation of new works that copyright law exists to protect.”

According to the amici, there is nothing fair about IA’s digital library; instead, they see it as “unambiguous copyright infringement.”

Copyright Experts, Professors, and Lawmakers

A second amicus brief is submitted by more than a dozen professors and scholars of copyright and intellectual property law. They stress that IA’s practice should not be seen as “transformative” fair use, arguing that the library offers a “substitution” for books that are legally offered by the publishers.

This sets the case apart from current legal precedents including the Google Books case , where Google’s mass use of copyrighted books was deemed fair use.

“IA’s exploitation of copyrighted books is thus the polar opposite of the copying that was found to be transformative in Google Books and HathiTrust . IA offers no ‘utility-expanding’ searchable database to its subscribers. What it does offer is access to full-text books as a clearly competing substitute for the versions licensed by book publishers,” the legal scholars write.

Another amicus brief adds more heavyweight support for the publishers. This includes former judges and two dozen government officials and lawmakers, including Lamar Smith, former Chair of the House Judiciary Committee, and Bob Goodlatte, former Chair of the House Judiciary Committee.

This brief also rejects the Internet Archive’s fair use arguments, framing the library as a threat instead.

“IA does not further the public interest, but rather undermines incentives to create and disseminate books that benefit society. Thus, its actions are decidedly not protected by fair use,” their brief reads.

IA and AI

The final amicus brief we want to highlight comes from a broad collection international and regional trade groups from outside the United States. These include the International Publishers Association, the International Video Federation, and the Association of Canadian Publishers.

These groups also reject the fair use arguments. They stress that in addition to directly competing with the interests of publishers, IA’s library is also an indirect ‘artificial intelligence’ threat as the digitized books can be used as AI training material.

“The Internet Archive is an obvious source of high-quality works for AI training since these works have been professionally edited and improved by publishers. Entering the terms ‘Internet Archive DRM’ into any search engine results in a number of links to software tools that remove the Internet Archive’s DRM technology along with instructions on how to use it.

“Even if AI training is ultimately determined by U.S. courts to not be a fair use, Amici fear that the Internet Archive’s CDL collection has already been used as an AI training tool,” the international trade groups add.

In summary, the book publishers have plenty of external support for their legal battle. However, it remains to be seen whether any of these amici, including those in favor of IA, will influence the eventual outcome of the appeal.

—

Below is an overview of the amicus briefs that were filed over the past few days, all in support of the publishers.

– RIAA, MPA, NMPA, News Media Alliance .
– Former government officials, former judges, and intellectual property scholars .
– Copyright Alliance .
– Various organizations that represent the interests of writers and other creators .
– Professors and scholars of copyright and intellectual property law .
– International and regional trade bodies .

From: TF , for the latest news on copyright battles, piracy and more.

Ça chauffe entre les éditeurs et Internet Archive !

En 2020, Hachette, HarperCollins, John Wiley et Penguin Random House ont attaqué en justice la bibliothèque numérique pour violation du droit d’auteur, comparant son initiative Open Library à un site pirate. 😱

Le fonctionnement d’Internet Archive est pourtant simple : elle scanne des livres physiques pour les prêter en format ebook, avec des restrictions techniques empêchant la copie. Un seul utilisateur peut emprunter une copie numérique d’un livre physique à la fois. Mais ça ne plaît pas à tout le monde…

Les éditeurs voient rouge et parlent carrément d’un « assaut frontal » contre leur droit exclusif de contrôler les différents formats de leurs œuvres. Ils ont bien l’intention de défendre bec et ongles ce « principe fondamental » qui a permis l’essor de la diversité des formats (livres, films, télé, musique).

Internet Archive essaie bien de répliquer en brandissant le fair use , arguant que ses copies numériques sont « transformatives » comme l’autorise l’arrêt Betamax pour l’enregistrement vidéo privé. Mais les éditeurs n’en démordent pas : pour eux c’est juste un moyen de contourner les licences officielles d’ebooks.

Ce qui les effraie par-dessus tout, c’est un « moment Napster » pour l’industrie du livre. Si n’importe qui peut numériser et distribuer des bouquins sans passer par la case éditeur, ça risque de faire très mal.

Scoop les gars, c’est déjà le cas depuis des années…

Mais bon, la Cour de justice américain a tranché en 2022 : Internet Archive est bien coupable de violation du droit d’auteur . Toutefois la bibliothèque virtuelle ne compte pas en rester là et a fait appel, avec le soutien d’auteurs et d’experts en propriété intellectuelle qui dénoncent un contrôle excessif des éditeurs.

Affaire à suivre donc…

Bien malin qui pourrait prédire les bouleversements à venir pour l’industrie du livre à l’ère du numérique comme disent les vieux. Une chose est sûre : comme pour la musique avec Napster puis Spotify, il va falloir s’adapter ou couler ! Plouf !

Source

In 2020, publishers Hachette, HarperCollins, John Wiley and Penguin Random House sued the Internet Archive (IA) for copyright infringement, equating its ‘Open Library’ to a pirate site.

IA’s library operates as a non-profit organization that scans physical books, which can then be loaned out in an ebook format. Patrons can also borrow books that are scanned and digitized in-house, with technical restrictions that prevent copying.

Staying true to the centuries-old library concept, only one patron at a time can rent a digital copy of a physical book. These restrictions were temporarily loosened at the height of the COVID-19 epidemic when IA launched the National Emergency Library.

Publishers vs. Internet Archive

The self-scanning approach differs from the licensing deals other libraries enter into. Not all publishers are happy with IA’s service which triggered a massive legal battle four years ago.

Publishers Hachette, HarperCollins, John Wiley, and Penguin Random House filed a lawsuit, equating IA’s controlled digital lending (CDL) program to a piracy operation. Last year, a New York Federal court concluded that the library is indeed liable for copyright infringement .

The Court’s decision effectively put an end to IA’s self-scanning library, at least for books from the publishers in suit, but IA isn’t prepared to let go without a fight. Last December, the non-profit filed its opening brief at the Second Circuit Court of Appeals, hoping to reverse the judgment .

Publishers Respond to IA’s Appeal

IA argued that its scanning-and-lending activities amount to fair use. They cited expert witnesses who concluded that there’s no financial harm and further argued that the service is substantially different from the ebook licensing market.

Late last week, the publishers filed a redacted copy of their reply brief at the Second Circuit Court of Appeals. According to the companies, IA engaged in “massscale infringement” by making digital copies of physical books without permission from the works’ rightful owners.

The IA-digitized books are then lent to patrons instead of officially-licensed ebooks, which the publishers see as a direct threat to their rights and business.

“Controlled digital lending is a frontal assault on the foundational copyright principle that rightsholders exclusively control the terms of sale for every different format of their work – a principle that has spawned the broad diversity in formats of books, movies, television and music that consumers enjoy today,” the publishers write.

The publishers state that more than 93% of the public libraries in the US license ebooks through official channels. IA refuses to do so, arguing that making their own digital copies of legitimately purchased books amounts to fair use.

Not a VCR

IA views these digital copies as “transformative” and argues that its scan-and-digitize practice is fair use. In the appeal brief, the library equated it to the digital copies of video broadcasts, which people can legally make following the Betamax decision .

The publishers, however, maintain that IA’s lending operation is an effort to bypass official licensing channels, arguing that it has little to do with how people could use a VCR for private use.

“IA reaches far afield and twists Sony beyond recognition in an effort to manufacture some support. But Sony only held that it was fair use for users of Betamax machines to ‘time-shift’ free television programs ‘for private home use’.

“This bears no resemblance to IA’s massive book digitization project systematically distributing bootleg ebooks to the worldwide general public,” the publishers add.

The book publishers believe that IA is headed into uncharted waters, where no other library has ever gone. While IA sees its lending program as a logical and widely accepted step, the rightsholders frame it as a novel digital threat.

“Public libraries […] have never engaged in mass-digitization of millions of commercially available print books and distributed the resulting ebooks to anyone with an internet connection; they have never systematically evaded publishers’ terms of sale for specific formats like ebooks; they have never partnered with a used bookstore to funnel books to offshore scanning facilities..,” the publishers write.

All About Control

IA and several supporters , including the Authors Alliance and various copyright scholars, previously argued that publishers currently have too much power and control.

Allowing libraries to scan and digitize their books would certainly limit this control, but the publishers believe that’s clearly against the law.

“In short, IA’s practice of CDL is radical and unlawful. A decision deeming CDL fair use would have a dire impact on book publishing and all creative industries. Libraries around the country could skirt the current library ebook markets, fundamentally interfering with the Publishers’ digital strategies and destabilizing book markets,” they write.

A Napster Moment?

The publishers fear a ‘Napster moment’ for books if outsiders can run their own digitization programs and operate distribution platforms, without the involvement of rightsholders. Napster has shown that this is a viable threat and recent legal discussions surrounding the use of copyrighted works for AI training make this a very relevant issue today.

“Indeed, as technology companies ‘train’ generative AI products on vast numbers of books and other media, maintaining legal protection for derivative uses has never been more important,” the publishers note.

“The long-range disruptions in the music industry caused by Napster and other file sharers are a cautionary tale on the dangers of illicit copying that deprives rightsholders of the ability to control their markets.”

Interestingly, Napster’s existence arguably provoked the foundation of a new music industry model. It proved to be a large inspiration for innovators including Spotify’s Daniel Ek , who pioneered the music streaming business that generates most of the industry’s revenue today.

The publishers don’t elaborate on the broader implications of Napster, but they likely refer to the drastic decline in music sales that took place shortly after the service gained popularity.

The publishers ask the court to affirm the lower court’s decision, which currently prevents IA from lending out digitized copies of its books. The request is backed by a series of detailed legal arguments and citations in the full brief, which can be accessed here (pdf) .

From: TF , for the latest news on copyright battles, piracy and more.

The Internet Archive is widely known for its Wayback Machine, which preserves copies of the web for future generations.

These archiving efforts, which started decades ago, will become more valuable over time. The same could apply to IA’s other projects, including the digitization of old books and records.

Six years ago, the Archive began archiving the sounds of 78-rpm gramophone records, a format obsolete today. In addition to capturing their unique audio, including all ‘crackles and hisses’, this saves unique recordings for future generations before the vinyl or shellac disintegrates.

The ‘ Great 78 Project ‘ received praise from curators, historians, and music fans but not all music industry insiders were happy with it. Several record labels including Sony and UMG, sued the Internet Archive for copyright infringement in Manhattan federal court last year.

IA’s Motion to Dismiss

A few weeks ago, IA responded to these allegations with a motion to dismiss . According to the Archive, many of the claims are simply too late, as they supposedly point to infringements that occurred over three years ago. The record labels were aware of this, they allege, as the RIAA sent a cease and desist letter on their behalf but took no further action at the time.

The motion is centered around the statute of limitations but IA also stressed the importance of their archiving efforts, hinting that it would be eligible for a fair use defense.

Specifically, the motion explained that the ‘Great 78 Project’ aims to systematically archive these old records, including the hisses, crackles and pops, to preserve them for future generations.

“The specific quality of the sound, including the peculiar and distinct crackles and other imperfections that are a hallmark of this antiquated medium formed an indelible part of American culture for many decades,” the motion reads.

Record Labels Respond

The record labels responded to this motion a few days ago, letting the court know that they see no reason to dismiss any claims at this stage. The RIAA letter that IA relied on didn’t mention any dates and shouldn’t be construed as knowledge of any specific infringements, they counter.

“[T]he letter cannot demonstrate that Plaintiffs were aware, or should have been aware, that Defendants infringed any of the particular works in suit at the time the letter was sent,” their reply reads.

The labels listed a total of 2,749 musical works, which are good for a potential statutory damages award of more than $400 million. None of these claims should be dismissed at this stage, they argue, as discovery could show that they are timely.

“Later in the case, discovery will adduce the multitude of dates pivotal to the statute of limitations analysis, including: all of the dates Defendants created copies of the sound recordings at issue […] and the dates that the Defendants distributed and/or transmitted the sound recordings at issue to others.”

The Archive’s motion to dismiss is limited to the statute of limitation argument but the record labels also picked up on the “hisses and crackles” references, which they couldn’t ignore.

‘Hisses and Crackles’

The music companies are convinced that IA’s archiving of obsolete records is illegal, equating it to a massive pirate streaming library.

“Defendants have created a massive online storefront providing digital copies of thousands of these protected sound recordings to anyone to stream or download for free. The Great 78 Project is illegal,” they state.

The labels further believe that the defendants are “dreaming up baseless arguments” to justify their activity. This includes the value placed on the unique sound of old records, which the music companies label the ‘Rice Krispies’ argument.

These sounds are not a feature, but a bug, the music companies counter. They are audible imperfections, a sign of decaying physical records, which were never intended to be heard.

“When these recordings were released, they did not have all of the same hisses, crackles, and pops they have today. Many of those flaws result from the brittle discs’ many decades of age,” the labels note.

“Contrary to Defendants’ arguments, recording the hisses and crackles does not preserve how the records sounded on release. Instead, it anachronistically captures how an older format behaves after more than seventy years of aging.”

Fair Use?

Today, many people have come to appreciate these unique sounds. IA stressed that, without digitizing them, they may be soon lost forever. As such, its archiving effort should be able to rely on a fair use defense.

While the court is not yet being asked to consider the fair use aspect, the labels reject IA’s line of reasoning.

“Fair use cannot be perverted into forfeiting a sound recording’s protection under copyright law just because the recording is copied, distributed, and performed in something other than its cleanest sound. If ever there were a theory of fair use invented for litigation, this is it,” they write.

All in all, it’s clear that both parties have a very different take on the ‘Great 78 Project‘. First, the court has to decide whether any claims will be dismissed based on the statute of limitations argument. After that, we will likely see more ‘fair use’ fireworks.

The music companies also responded to a separate motion to dismiss from the Kahle-Austin Foundation. The foundation argued that there are no grounds to include it in the lawsuit, as it only helped to fund the Internet Archive, but the labels argue that as a named sponsor it knew of the infringements.

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A copy of the record labels’ response to IA’s motion to dismiss is available here (pdf) . The response to the Kahle-Austin Foundation can be found here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

Founded in 1996, the Internet Archive has built an unparalleled library of digital artifacts in less than three decades.

Many people are familiar with the website archiving project “Wayback Machine” but the non-profit also has many other preservation projects underway.

These meticulous archiving skills are a vital part of the digital history books, which are being ‘written’ as we speak. However, good intentions themselves are not immune to copyright complaints, or worse, multi-million dollar lawsuits.

The Great 78 Project

Six years ago, the Archive teamed up with other libraries and experts to archive the sounds of 78-rpm gramophone records, which are obsolete today. In addition to capturing their unique audio, including all crackles and hisses, this saves unique recordings for future generations before the vinyl or shellac disintegrates.

The ‘ Great 78 Project ‘ received praise from curators, historians, and music fans. However, not all music industry insiders were happy with it, as the copying took place without obtaining permission from all rightsholders.

Last summer, a group of major music labels including Capitol, Sony, and UMG, decided to take action. In a complaint filed at a U.S. federal court, they sued the Internet Archive , its founder Brewster Kale, and others they believe are responsible.

“When Defendants exploit Plaintiffs’ sound recordings without authorization, neither Plaintiffs nor their artists see a dime. Not only does this harm Plaintiffs and the artists or their heirs by depriving them of compensation, but it undermines the value of music,” the labels wrote.

With 2,749 recordings at stake, the potential statutory damages could run to more than $400 million. However, the Internet Archive (IA) sees things differently, believing that the ‘Great 78 Project’ is fair use.

IA Files Motion to Dismiss

Filed a few days ago, IA’s motion to dismiss stresses that it’s important to archive these older records, some of which date back to the late 19th century. The records have been obsolete since the 1950s but that doesn’t mean that their sounds should be lost forever, IA argues.

“The specific quality of the sound, including the peculiar and distinct crackles and other imperfections that are a hallmark of this antiquated medium formed an indelible part of American culture for many decades,” the motion notes.

“But the physical recordings themselves tend to disintegrate over time—and as the complete set of these old records gradually becomes unplayable, their unique contributions to our history is on a precipitous path to oblivion.”

The lawsuit will ultimately have to decide whether the ‘The Great 78 Project’ is allowed to exist under U.S. copyright law. The motion to dismiss also deals with another time-sensitive issue.

Specifically, IA argues that many of the works should be removed from the lawsuit, as the labels failed to take timely action following a cease and desist letter the RIAA sent in 2020. This letter pointed out concrete copyright concerns, but the labels allegedly took too long before filing their lawsuit.

RIAA’s Cease and Desist

The U.S. Copyright Act has a three-year statute of limitations. This means that, after discovering concrete copyright infringements, a lawsuit has to be filed within this window. That didn’t happen here, according to IA.

The RIAA letter didn’t list any specific recordings but referenced artists including Elvis Presley, Duke Ellington, and Billie Holiday. It further characterized IA as a platform that enables piracy on a massive scale, mentioning “thousands” of recordings.

“Although the Internet Archive is rife with infringing copies of sound recordings, perhaps the most prominent example of this infringement is the ‘Great 78 Project’,” RIAA wrote in its letter.

“Your unauthorized reproduction, distribution and public performance of these recordings is a plain violation of the RIAA member companies’ rights under the Classics Protection and Access Act (‘Classics Act’), 17 U.S.C. § 1401, and constitutes nothing less than piracy on a massive scale.”

IA Replied

IA’s motion to dismiss recognizes that the RIAA sent this letter. At the same time, it adds more context, pointing out that founder Brewster Kahle replied to the letter . Among other things, Kahle noted that rightsholders can send takedown notices or request the exclusion of certain artists and recordings.

According to the motion to dismiss, RIAA never responded to this reply, and the project continued in the years that followed.

“Internet Archive founder Brewster Kahle promptly responded that the project would gladly exclude any digitization of the labels’ recordings that they identified to Internet Archive. The record labels never responded to that letter,” the motion reads.

A follow-up eventually came when the RIAA member labels filed a lawsuit, more than three years later. The timing is important, as IA argues that the lawsuit falls outside the three-year statute of limitations.

Statute of Limitations

According to U.S. copyright law, the three-year period begins when a rightsholder ‘discovers’ the infringement. IA now argues that the labels were aware of alleged “Great 78 Project” infringements when the RIAA sent its letter.

“[T]he letter acknowledges plaintiffs’ belief, as of July 22, 2020, that ‘thousands’ of recordings had already been digitized and uploaded to the Great 78 Project, including those by specific named artists,” IA writes.

“And even if Plaintiffs did not have actual knowledge of those alleged acts of infringement, the RIAA letter at a minimum demonstrates that a reasonable plaintiff ‘should have discovered’ the alleged infringement and that a cause of action for infringement had accrued as of that date.”

The IA argues that since many claims fall outside the three-year period, they should be dismissed. While some claims may remain, this will help to significantly narrow the scope of the case, as well as the potential damages.

At the time of writing, the labels have yet to respond to IA’s argument. They may see things differently but, on the surface, the timing seems unfortunate. Had they filed their case a few weeks earlier, this issue wouldn’t have come up.

Finally, the Kahle-Austin Foundation filed a separate motion to dismiss. The foundation argues that there are no grounds to include it in the lawsuit, as it only helps to fund the Internet Archive.

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The motion to dismiss filed by the Internet Archive and related defendants is available here (pdf) . The motion from the Kahle-Austin Foundation can be found here (pdf)

From: TF , for the latest news on copyright battles, piracy and more.

Read 8 remaining paragraphs | Comments

The Internet Archive (IA) is a non-profit organization that aims to preserve digital history for generations to come.

The digital library is a staunch supporter of a free and open Internet and began meticulously archiving the web over a quarter century ago.

In addition to archiving the web, IA also operates a library that offers a broad collection of digital media, including books. Staying true to the centuries-old library concept, IA patrons can also borrow books that are scanned and digitized in-house.

Publishers vs. Internet Archive

The self-scanning service is different from the licensing deals other libraries enter into. Not all publishers are happy with IA’s approach which triggered a massive legal battle two years ago.

Publishers Hachette, HarperCollins, John Wiley, and Penguin Random House filed a lawsuit, equating IA’s controlled digital lending (CDL) operation to copyright infringement. Earlier this year a New York Federal court concluded that the library is indeed liable for copyright infringement .

The Court’s decision effectively put an end to IA’s self-scanning library, at least for books from the publishers in suit. However, IA is not letting this go without a fight and last week the non-profit filed its opening brief at the Second Circuit Court of Appeals, hoping to reverse the judgment .

Support from Authors Alliance

IA doesn’t stand alone in this legal battle. As the week progressed, several parties submitted amicus curiae briefs to the court supporting IA’s library. This includes the Authors Alliance .

The Authors Alliance represents thousands of members, including two Nobel Laureates, a Poet Laureate of the United States, and three MacArthur Fellows. All benefit from making their work available to a broad public.

If IA’s lending operation is outlawed, the authors fear that their books would become less accessible, allowing the major publishers to increase their power and control.

The Alliance argues that the federal court failed to take the position of authors into account, focusing heavily on the publishers instead. However, the interests of these groups are not always aligned.

“Many authors strongly oppose the actions of the publishers in bringing this suit because they support libraries and their ability to innovate. Authors rely on libraries to reach readers and many are proud to have their works preserved and made available through libraries in service of the public.

“Because these publishers have such concentrated market power […], authors that want to reach wide audiences rarely have the negotiating power to retain sufficient control from publishers to independently authorize public access like that at issue here,” the Alliance adds.

This critique from the authors is not new. Hundreds of writers came out in support of IA’s digital book library at an earlier stage of this lawsuit, urging the publishers to drop their case.

The publishers didn’t listen to these concerns. They believe that IA’s library is disrupting the “ecosystem” and “market equilibrium” of ebook sales. However, the Authors Alliance now counters that the system is already out of whack, as publishers enjoy too much power.

“That ecosystem has long been out of balance, due not to the IA’s activities, but to these publishers’ leveraging of their power to insist on a marketplace in which they exercise almost absolute control over access, preservation, and research,” the Alliance notes.

According to the Authors Alliance, IA’s digital ebook library is a prime example of a service that should be permitted to operate as fair use, as it benefits both writers and readers.

Copyright Scholars Back IA

In a separate amicus brief, several prominent legal and copyright scholars, many of whom hold professor titles, raise similar arguments. They believe that IA’s lending system is not that different from the physical libraries that are an integral part of culture.

“Libraries have always been free under copyright law to lend materials they own as they see fit. This is a feature of copyright law, not a bug,” the brief reads.

What is new here, is that publishers now assert full control over how their digital books are treated. Instead of allowing libraries to own copies, they have to license them, which makes it impossible to add them to the permanent archive.

“The major publishers refuse to sell digital books to libraries, forcing them to settle for restrictive licenses of digital content rather than genuine ownership. Moreover, publishers insist they can prevent libraries from scanning their lawfully purchased physical books and lending the resulting digital copies.”

The scholars see IA’s library as fair use and note that the lower court ignored the long history of nonprofit library lending. It placed too much emphasis on the interests of publishers, largely ignoring the public benefits.

More Support Comes In

Thus far, the Court of Appeals has received four amicus briefs in support of IA’s library. In addition to the two mentioned above, others include a joint submission from the Center for Democracy & Technology , Library Freedom Project and Public Knowledge .

These groups also stress that the court focused too heavily on the publishers’ bottom line, while failing to properly take the rights of consumers into account.

“The district court should have more carefully considered the socially beneficial purposes of library-led CDL, which include protecting patrons’ ability to access digital materials privately, and the harm to copyright’s public benefit of disallowing libraries from using CDL.”

This sentiment is shared in the fourth amicus brief from information scholars and historians Kevin L. Smith and Will Cross , who also argue that publishers have too much power as it is.

The scholars believe that IA’s scan-and-lend library is a prime example of fair use, placing the interests of all stakeholders more closely into balance.

“Here, market failure is evident: one side (the publishers) has such a dominant position that they control all the terms of any sale, without any countervailing forces to balance the market.

“Fair use was designed to address precisely this type of market failure. Thus, CDL should be upheld under fair use. Otherwise, a decision against CDL would harm the public mission of libraries and perpetuate the existing market failure,” they add.

With no shortage of support for the Internet Archive, the stakes of this legal battle are clear. Thus far, the publishers have yet to file their response, but it’s likely that they will also receive support from third parties.

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The amicus briefs cited in this article are all available below (pdf)

– Authors Alliance
– Copyright scholars
– CDT, Library Freedom Project, and Public Knowledge
– Kevin L. Smith and Will Cross

From: TF , for the latest news on copyright battles, piracy and more.