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 is a non-profit operation that scans physical books, which can then be lent out to patrons 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 for a limited period.

Mass Copyright Infringement or Fair Use?

Not all rightsholders are happy with IA’s scanning and lending activities. The publishers are not against libraries per se, nor do they object to ebook lending, but ‘authorized’ libraries typically obtain an official license or negotiate specific terms. The Internet Archive has no license.

The publishers see IA’s library as a rogue operation that engages in willful mass copyright infringement, directly damaging their bottom line. As such, they want it taken down permanently.

The Internet Archive wholeheartedly disagreed with the copyright infringement allegations; it offers a vital service to the public, the Archive said, as it built its legal defense on protected fair use.

After weighing the arguments from both sides, New York District Court Judge John Koeltl sided with the publishers. In March, the court granted their motion for summary judgment, which effectively means that the library is indeed liable for copyright infringement .

The judgment and associated permanent injunction effectively barred the library from reproducing or distributing digital copies of the ‘covered books’ without permission from rightsholders. These restrictions were subject to an eventual appeal, which was announced shortly thereafter.

Internet Archive Files Appeal Brief

Late last week, IA filed its opening brief at the Second Circuit Court of Appeals, asking it to reverse the lower court’s judgment. The library argues that the court erred by rejecting its fair use defense.

Whether IA has a fair use defense depends on how the four relevant factors are weighed. According to the lower court, these favor the publishers but the library vehemently disagrees. On the contrary, it believes that its service promotes the creation and sharing of knowledge, which is a core purpose of copyright.

“This Court should reverse and hold that IA’s controlled digital lending is fair use. This practice, like traditional library lending, furthers copyright’s goal of promoting public availability of knowledge without harming authors or publishers,” the brief reads.

A fair use analysis has to weigh the interests of both sides. The lower court did so, but IA argues that it reached the wrong conclusions, failing to properly account for the “tremendous public benefits” controlled digital lending offers.

No Competition

One of the key fair use factors at stake is whether IA’s lending program affects (i.e., threatens) the traditional ebook lending market. IA uses expert witnesses to argue that there’s no financial harm and further argues that its service is substantially different from the ebook licensing market.

IA offers access to digital copies of books, which is similar to licensed libraries. However, the non-profit organization argues that its lending program is not a substitute as it offers a fundamentally different service.

“For example, libraries cannot use ebook licenses to build permanent collections. But they can use licensing to easily change the selection of ebooks they offer to adapt to changing interests,” IA writes.

The licensing models make these libraries more flexible. However, they have to rely on the books offered by commercial aggregators and can’t add these digital copies to their archives.

“Controlled digital lending, by contrast, allows libraries to lend only books from their own permanent collections. They can preserve and lend older editions, maintaining an accurate historical record of books as they were printed.

“They can also provide access that does not depend on what Publishers choose to make available. But libraries must own a copy of each book they lend, so they cannot easily swap one book for another when interest or trends change,” IA adds.

Stakes are High

The arguments highlighted here are just a fraction of the 74-page opening brief, which goes into much more detail and ultimately concludes that the district court’s judgment should be reversed.

In a recent blog post, IA founder Brewster Kahle writes that if the lower court’s verdict stands, books can’t be preserved for future generations in digital form, in the same way that paper versions have been archived for centuries.

“This lawsuit is about more than the Internet Archive; it is about the role of all libraries in our digital age. This lawsuit is an attack on a well-established practice used by hundreds of libraries to provide public access to their collections.

“The disastrous lower court decision in this case holds implications far beyond our organization, shaping the future of all libraries in the United States and unfortunately, around the world,” Kahle concludes .

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

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

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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 is a non-profit organization that scans physical books, which can then be lent out to patrons 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 epidemic when IA launched the National Emergency Library.

Mass Copyright Infringement or Fair Use?

Patrons happily use the library but not all rightsholders are happy with IA’s scanning and lending activities. The publishers are not against libraries per se, nor do they object to ebook lending, but ‘authorized’ libraries typically obtain an official license or negotiate specific terms. The Internet Archive has no such license.

As such, the publishers see IA’s library as a rogue operation that engages in willful mass copyright infringement, directly damaging their bottom line. As such, they want it permanently taken down.

“Without any license or any payment to authors or publishers, IA 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,” their complaint reads.

The Internet Archive wholeheartedly disagreed with the copyright infringement allegations. Stressing that the library offers a vital service, Internet Archive’s defense centered on the legal concept of transformative fair use.

Liability Ruling and Consent Judgment

After weighing the arguments from both sides, New York District Court Judge John Koeltl sided with the publishers. In March, the court granted their motion for summary judgment, which effectively means that the library is indeed liable for copyright infringement .

The court instructed both sides to come up with a consent judgment to determine how the ruling would be reflected in IA’s lending program. After several weeks of negotiations, a proposed agreement was submitted to the court last Friday.

The judgment comes with a permanent injunction that effectively bars the library from reproducing or distributing digital copies of the ‘covered books’ without permission from rightsholders.

These restrictions are subject to appeal, which means that the agreement could be rendered moot if IA wins its appeal, which is currently pending.

Covered Books?

The book publishers and IA agree on nearly all aspects of the proposed judgment except one. The parties still disagree on the term ‘covered books’ and leave this question open for the court.

The publishers would like all of their copyrighted works to be covered by the injunction, including those that are not available in ebook format. IA, on the other hand, believes that digitizing physical books is fair game if the publishers don’t offer a digital version.

“This case involved only works that the Publishers make available as ebooks and so the scope of any injunction should be limited accordingly,” IA explains.

The publishers disagree and stress that the court has already made it clear that IA is not allowed to digitize and distribute print books en masse without permission. Publishers should also have the right not to release ebooks, if they prefer.

“Of key significance, the law is clear that the right to decide whether or not to publish a book in electronic format belongs to its authors and publishers, not IA,” the publishers write.

Next Chapter

The court will now have to decide how broad the definition “covered books” should be. In their proposed judgment, the parties leave this question open, as shown below.

What’s clear, however, is that IA must make changes to its lending program. The organization says that it will communicate these to its patrons, once the judgment is approved.

At the same time, the library also made clear that it will fight the underlying order, as it believes that libraries should be able to digitize and lend books outside the strict licensing ecosystem.

“Libraries are under attack at unprecedented scale today, from book bans to defunding to overzealous lawsuits like the one brought against our library,” Internet Archive founder Brewster Kahle says .

“These efforts are cutting off the public’s access to truth at a key time in our democracy. We must have strong libraries, which is why we are appealing this decision,” Kahle concludes.

Meanwhile, IA has a new legal battle on its hands as the non-profit was sued by several prominent record labels on Friday. The companies accuse it of blatantly infringing copyrights in hundreds of thousands of sound recordings.

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A copy of the proposed consent judgment submitted to the court on Friday is available here

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

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The Internet Archive (IA) is a non-profit organization that aims to save the history of the Internet 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.

Today, IA has more than 800 billion pages in its archive and 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, with technical restrictions that prevent copying. At least, that’s the idea.

The self-scanning service is different from the licensing deals other libraries enter into. Not all publishers are happy with this scheme and when IA lifted its ‘one-digital-copy-per-patron’ policy at the start of the coronavirus pandemic, a massive lawsuit ensued.

Publishers Hachette, HarperCollins, John Wiley and Penguin Random House sued IA , equating the Open Library’s lending operation to copyright infringement. Earlier this year a New York Federal court concluded that the library is indeed liable for copyright infringement .

IA Sends DMCA Notice to Stop Book Piracy

The scale of the damages in that case are yet to be determined but in light of the legal battle, we noticed an interesting DMCA takedown notice this week through which IA tries to protect the publishers.

The Internet Archive sent a takedown request to GitHub, requesting the developer platform to remove a tool that circumvents industry-standard technical protection mechanisms for digital libraries. This “DeGouRou” software effectively allows patrons to save DRM-free copies of the books they borrow.

“This DMCA complaint is about a tool made available on github which purports to circumvent technical protections in violation of the copyright act section 1201,” the notice reads.

“I am reporting a Git which provides a tool specifically used to circumvent industry standard library TPMs which are used by Internet Archive, and other libraries, to permit patrons to borrow an encrypted book, read the encrypted book, and return an encrypted book.”

Not Authorized

Interestingly, an IA representative states that they are “not authorized by the copyright owners” to submit this takedown notice. Instead, IA is acting on its duty to prevent the unauthorized downloading of copyright-protected books.

It’s quite unusual to see a party sending takedown notices without permission from the actual rightsholders. However, given the copyright liabilities IA faces, it makes sense that the organization is doing what it can to prevent more legal trouble.

Permission or not, GitHub honored the takedown request. It removed all the DeGourou repositories that were flagged and took the code offline.

DeGourou is ‘Archived’ Elsewhere

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The publishers are likely pleased to see IA acting in their interests. However, as we often see on a free and open Internet, taking something completely offline isn’t always straightforward. After GitHub removed the code, it soon popped up elsewhere.

Apparently, some people are relentlessly trying to maintain an archive of the code in other places.

A Reddit thread that was initially posted five months ago linked to DeGourou’s GitHub page. After that was taken down it moved to Replit instead, but that instance was also targeted with a DMCA notice. DeGourou has now moved to GitLab, for as long as it lasts.

IA is clearly concerned about the potential copyright infringement implications of its library. The organization is currently finalizing a consent judgment with the publishers to establish the damages it owes in the earlier mentioned legal battle, while also leaving the door open for an appeal.

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

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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 is operated by a non-profit organization that scans physical books and then lends the digital copies to patrons in an ebook format.

While ‘digital’ book lending is not uncommon, libraries typically loan out DRM-protected files after acquiring a license from publishers. In this case, IA sent physical books it owned to a scanning facility and made its own copies.

Fair Use or Mass Copyright Infringement?

These digital copies were subsequently loaned out to patrons, with IA ensuring that only one person at a time could access a single digital copy of a single physical book.

IA previously sought summary judgment in its favor, arguing that a digital copy of a physical book ‘transforms’ the original work, with lending limits and the absence of profit also supporting a finding of fair use.

In contrast, the publishers described IA’s library as a rogue operation engaging in willful mass copyright infringement. Claiming direct damage to their bottom line, the publishers’ lawsuit aimed to put an end to the “illegal” lending program once and for all.

The publishers went on to request summary judgment and a declaration that this type of copying is a clear case of copyright infringement .

Opinion and Order

Earlier this week, the parties had the opportunity to back up their arguments during a New York Court hearing . District Court Judge John Koeltl questioned both sides on their summary judgment requests, before deliberating on his final decision.

After weighing the arguments. Judge Koeltl published his opinion and order yesterday. His order clearly sides with the publishers, whose request for summary judgment was granted. IA’s fair use defense and summary judgment in its favor was denied.

Courts typically weigh four factors when determining fair use. Judge Koeltl concludes that all four factors weigh strongly in favor of the publishers.

Starting with the first factor – whether the use is transformative – the order stresses that IA failed to show that its book lending operation meets the standard. The fact that only one patron at a time can borrow a book is irrelevant to the fair use question, the order notes.

“The crux of IA’s first-factor argument is that an organization has the right under fair use to make whatever copies of its print books are necessary to facilitate digital lending of that book, so long as only one patron at a time can borrow the book for each copy that has been bought and paid for,” Judge Koetl writes.

“But there is no such right, which risks eviscerating the rights of authors and publishers to profit from the creation and dissemination of derivatives of their protected works.”

The court fails to see how IA’s operation transforms the original work. The fact that IA is a non-profit organization isn’t a strong defense either, as the lending program still allows IA to benefit through donations and other means, without obtaining an appropriate license from the publishers.

“IA’s wholesale copying and unauthorized lending of digital copies of the Publishers’ print books does not transform the use of the books, and IA profits from exploiting the copyrighted material without paying the customary price,” Judge Koetl notes.

Competing With Free?

Profits and revenue are also relevant in determining the fourth fair use factor, which questions whether the library affects the original book market and existing revenues.

IA argued that this isn’t the case, as sales volumes fail to show a negative correlation with its lending service. Unconvinced by the argument, Judge Koetl says that IA’s program amounts to direct competition for licensed alternatives.

“In this case, there is a ‘thriving ebook licensing market for libraries’ in which the Publishers earn a fee whenever a library obtains one of their licensed ebooks from an aggregator like OverDrive.

“This market generates at least tens of millions of dollars a year for the Publishers. And IA supplants the Publishers’ place in this market.”

IA’s library offers a vastly cheaper alternative to licensed platforms, which allows libraries and the public to save money. However, it does so at the expense of the publishers and their authors, according to the court.

“It is equally clear that if IA’s conduct becomes widespread, it will adversely affect the potential market for the Works in Suit,” Judge Koetl writes.

IA is Liable for Copyright Infringement

Since the remaining fair use factors weigh clearly in favor of the publishers, IA’s fair use defense fails. As a result, the court concludes that the Internet Archive is indeed liable for copyright infringement.

The scale of the damages has yet to be established. IA asked for statutory damages to be remitted, citing its status as a nonprofit library. Judge Koeltl says that at this time, any decision on damages is premature.

Based on this order, it’s clear that IA’s ebook lending library won’t be allowed to continue in its current form. That said, the Archive still has the option to appeal.

In response to the order, IA’s Director of Open Libraries, Chris Freeland, confirmed that an appeal is forthcoming.

“We will keep fighting for the traditional right of libraries to own, lend, and preserve books. We will be appealing the judgment and encourage everyone to come together as a community to support libraries against this attack by corporate publishers.”

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

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 is a non-profit organization that scans physical books, which can then be lent out to patrons in an ebook format.

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

Mass Copyright Infringement or Fair Use?

The publishers see IA’s library as a rogue operation that engages in willful mass copyright infringement, directly damaging their bottom line. As such, they want it permanently taken down.

“Without any license or any payment to authors or publishers, IA 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,” their complaint reads.

The publishers are not against libraries per se, nor do they object to ebook lending. When lending digital content, ‘authorized’ libraries typically obtain a license or negotiate specific terms. The Internet Archive has no such license.

The Internet Archive wholeheartedly disagrees with the copyright infringement allegations. Stressing that the library offers a vital service, Internet Archive’s defense centers on the legal concept of fair use.

The Archive states that making a digital copy of a physical book ‘transforms’ the original work before it is loaned to one patron at a time. That would qualify as fair use, they argue, especially since there is no profit motive.

Another factor in favor of fair use is the fact that there are numerous benefits to the public at large. There is also no evidence to show that the book publishers’ sales or traditional licensing revenues were impacted.

New York Court Hearing

Over the past two-and-a-half years, the parties have gone back and forth in court, disputing each other’s arguments. This eventually resulted in contrasting motions for summary judgment , with both sides hoping for a ruling in their favor ahead of the trial.

Yesterday, IA and the publishers had the opportunity to back up their positions during a New York District Court hearing. Both parties laid out their cases and were questioned by District Court John Koeltl.

The publishers’ attorney Elizabeth McNamara pointed out that the IA strives to make all knowledge available for free, but doesn’t want to compensate rightsholders for their works.

“IA does not want to pay authors or publishers to realize this grand scheme and they argue it can be excused from paying the customary fees because what they’re doing is in the public interest,” she said, quoted by The Register .

The publishers’ attorney added that IA’s lending platform directly harms authors and publishers, but Judge Koeltl didn’t see any direct evidence of harm. IA’s attorney Joseph Gratz said evidence of harm doesn’t exist.

“There’s no evidence that the publishers have lost a dime,” Gratz said, as quoted by Ars Technica .

Unauthorized Reproductions

The four-factor fair use test that applies in these cases isn’t straightforward, but a Reuters report highlights some interesting comments from Judge Koeltl.

Koeltl stressed that libraries absolutely have the right to lend books that they own but in this case, IA goes a step further by making a digital copy, a reproduction of the original work.

“You avoid the question of whether the library has the right to reproduce the book that it otherwise has the right to possess, which is really at the heart of the case,” Koeltl said, noting that “the publisher has a copyright right to control reproduction.”

IA’s attorney responded by pointing out that the reproductions serve a ‘transformative’ purpose in this case, while adding that every fair use case deals with copies or reproductions by definition.

Battle For Libraries

The above is just a fraction of the legal arguments under discussion. While in essence this is a copyright dispute subject to existing law and jurisprudence, it’s exemplary of a bigger problem.

The publishers are not only up against IA; a large public movement has formed in support. This includes Fight for the Future’s “ Battle for Libraries ” campaign, which argues that the publishers act as malicious gatekeepers, preventing the free flow of information and undermining libraries’ ability to serve their patrons.

The general complaint is that publishers want to control and restrict digital access to books through relatively expensive licensing agreements. This serves a commercial purpose, but can also be used to censor content and restrict access whenever they see fit.

The issue also attracted the attention of Creative Commons founder and Harvard Law Professor Lawrence Lessig, who describes this as a critical moment in the history of culture.

“The lawsuit that the Internet Archive faces will determine whether the business model of culture is the commercial model alone, or whether there will continue to be a place for libraries,” Lessig notes.

Lawmakers have taken an interest in the dispute too. A few months ago, U.S. Senator Ron Wyden and Congresswoman Anna Eshoo sent a letter to the major publishers, asking them about their restrictive lease terms for ebooks.

“Many libraries face financial and practical challenges in making e-books available to their patrons, which jeopardizes their ability to fulfill their mission,” their letter reads.

“It is our understanding that these difficulties arise because e-books are typically offered under more expensive and limited licensing agreements, unlike print books that libraries can typically purchase, own, and lend on their own terms.”

These comments show that this isn’t just another copyright lawsuit. Whatever the immediate outcomes of the pending motions and trial, this matter is likely to be contested all the way to the Supreme Court.

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

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