AAP Vows to Protect Copyright from All Challengers

“Challenges to copyright protection are also happening at the state level, Pallante warned, where library lobbyists and “tech-funded” special interest groups are working to “divert copyright protection away from Congress to state assemblies,” an apparent reference to Maryland’s passage of a law late last week that would force publishers to make any digital content they license to consumers available as “an electronic literary product” to public libraries in the state “on reasonable terms.” The AAP opposed the law, and in her remarks, Pallante argued that these state efforts “are clearly preempted by the express language of the federal Copyright Act,” while also spinning a “false narrative.”

Pallante said libraries are an important part of the publishing ecosystem, but added that, “authors, publishers, and bookstores also have policy equities, which is why Congress enacted a singular cohesive federal copyright system that has address the ownership and sale of books since 1790.” She also hit back against what she said are lobbyists pushing states to fund open educational resources “through ugly misinformation campaigns aimed at publishers” and designed to replace publishers’ materials.

In a final point about copyright, Pallante said that the lawsuit the association filed a year ago against the Internet Archive for copying 1.3 million scans of books is still in discovery, but said the IA’s activities “are well outside the boundaries of both the law and copyright commerce, and ultimately pose an existential threat to the copyright framework on which authors and publishers rely.”…”

Now Is Not The Time For Publishers to Go After Online Libraries: Hachette Book Group, Inc. v. Internet Archive – The Temple 10-Q

“Nothing better promotes the progress of science and the arts than access to knowledge, especially during a global pandemic. COVID-19 has highlighted how our society has changed in the past few decades and how much it needs to change in the decades to come. As schools and workplaces, law firms included, went partially or completely remote, connectivity and access to online resources became more important than ever. It is in this environment that several publishers chose to bring litigation against Internet Archive (IA) in Hachette Book Group, Inc. v. Internet Archive. 

Open Library is a non-profit digital library founded by IA that offers online access to more than 1.3 million books that it has digitized into a PDF format. Operating under the Controlled Digital Lending (CDL) model, Open Library lends out only as many books as it has physical hardcopies of. Essentially, the basis of CDL is that a book must be owned to be loaned.  …”

Are price barriers in the national interest?

“[Adler] rejected the idea that taxpayer financed research should be open to the public, saying that it was in the national interest for it to be restricted to those who could pay subscription fees. “Remember — you’re talking about free online access to the world,” he said. “You are talking about making our competitive research available to foreign governments and corporations.” …

Note that we’re talking about published research, not classified research that isn’t published.

Thank goodness our enemies can’t afford to pay subscriptions or visit libraries.

Thank goodness harming Americans has the side-effect of harming foreigners.  At least our sacrifice is not in vain.

Thank goodness Americans have never benefited from scientific advances made by non-Americans. 

Thank goodness publishers are willing to collect subscription fees for this patriotic purpose.

Thank goodness publishers are willing to shoulder the responsibility of controlling access to our research.   We know that they don’t have to.  They didn’t conduct this research, write it up, or fund it….”

Are price barriers in the national interest?

“[Adler] rejected the idea that taxpayer financed research should be open to the public, saying that it was in the national interest for it to be restricted to those who could pay subscription fees. “Remember — you’re talking about free online access to the world,” he said. “You are talking about making our competitive research available to foreign governments and corporations.” …

Note that we’re talking about published research, not classified research that isn’t published. Thank goodness our enemies can’t afford to pay subscriptions or visit libraries. Thank goodness harming Americans has the side-effect of harming foreigners.  At least our sacrifice is not in vain. Thank goodness Americans have never benefited from scientific advances made by non-Americans.  Thank goodness publishers are willing to collect subscription fees for this patriotic purpose. Thank goodness publishers are willing to shoulder the responsibility of controlling access to our research.   We know that they don’t have to.  They didn’t conduct this research, write it up, or fund it….”

Internet Archive lawyer Lila Bailey leads a new phase of the battle over copyright | Fortune

“The case involves the Internet Archive’s decision to create a temporary “National Emergency Library” at the height of the pandemic’s first wave—a service that expanded how many e-books clients could borrow simultaneously. The publishing industry sued, saying the non-profit was handing out digital books without permission.

 

The Internet Archive case has received national attention—a widely shared article in The Nation described it as “publishers taking the Internet to court”—and has drawn attention to the reality that, as library branches close over COVID concerns, patrons must often wait 10 weeks or more to borrow the digital version of a best-seller….”

Pop! Public-Private Partnerships and the Digitization of the Textual and Cultural Record

“This paper follows these threads to investigate a series of case studies of electronic access to books and cultural heritage, each incorporating some notion of a public-private partnership and some notion of the importance of open access or public good agendas, using as case studies projects like the HathiTrust’s Digital Library, Google Books, and Microsoft’s partnership with the British Library in the ill-fate Live Search Books project. The paper asks how the principles of open social scholarship contribute to a better and more nuanced understanding of digitization as a cultural practice and asks how a better understanding of the networks, partnerships, and paperwork (agreements, policies etc) of digitization could inform developments in open social scholarship. …”

Publisher Lawsuit Against Internet Archive Puts Future of Book Ownership In Question | WDET

“The newly-launched library serviced a temporary collection of books — about 4 million in total, many in the public domain — with a targeted focus of supporting remote teaching, research activities and independent scholarship. For this service, students paid nothing. 

This Open Library is now at the center of a lawsuit filed by major publishing corporations, including HarperCollins, Hatchett, Wiley and Random House, against the Internet Archives, a nonprofit website, alleging that the Open Library concept is a “mass copyright infringement.”

The lawsuit is scheduled for a federal court trial in 2021.  The publishers are seeking to have the Open Library permanently shut down….

In an op-ed written for The Nation, journalist and new media pioneer Maria Bustillos took a critical look at the lawsuit, the concept of an open library and what ownership means when major publishers seek to change what it means to own a book….”

Internet Archive Responds to Piracy Charges | CCC’s Beyond the Book

“According to the filing, says [Andrew Albanese of Publishers Weekly], the Internet Archive “does what libraries have always done: buy, collect, preserve, and share our common culture. Its untested legal theory of Controlled Digital Lending (CDL) is [allegedly] a good faith and legal effort specifically designed to ‘mirror traditional library lending online.’

[Still quoting Albanese:] “Contrary to the publishers’ accusations, the filing states, the Internet Archive, and the hundreds of libraries that support CDL, are not pirates or thieves, they are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world.” …”

Judge Sets Tentative Trial Date for November 2021 – Internet Archive Blogs

“This week, a federal judge issued this scheduling order, laying out the road map that may lead to a jury trial in the copyright lawsuit brought by four of the world’s largest publishers against the Internet Archive. Judge John G. Koeltl has ordered all parties to be ready for trial by November 12, 2021. He set a deadline of December 1, 2020, to notify the court if the parties are willing to enter settlement talks with a magistrate judge. 

Attorneys for the Internet Archive have met with representatives for the publishers, but were unable to reach an agreement. “We had hoped to settle this needless lawsuit,” said Brewster Kahle, Internet Archive’s founder and Digital Librarian. “Right now the publishers are diverting attention and resources from where they should be focused: on helping students during this pandemic.” 

The scheduling order lays out this timeline:

Discovery must be completed by September 20, 2021;
Dispositive motions must be submitted by October 8, 2021;
Pretrial orders/motions must be submitted by October 29, 2021;
Parties must be ready for trial on 48 hours notice by November 12, 2021…..

Publishers Weekly Senior Writer Andrew Albanese has been covering the story from the beginning. In a July 31st Beyond the Book podcast for the Copyright Clearance Center, Albanese shared his candid opinions about the lawsuit. “If this was to be a blow out, open-and-shut case for the publishers, what do the publishers and authors get?” Albanese asked. “I’d say nothing.”

“Honestly, a win in court on this issue will not mean more sales for books for publishers. Nor will it protect any authors or publisher from the vagaries of the Internet,” the Publishers Weekly journalist continued. “Here we are in the streaming age, 13 years after the ebook market took off, and we’re having a copyright battle, a court battle over crappy PDFs of mostly out-of-print books? I just don’t think it’s a good look for the industry.” …”

Publishers Are Taking the Internet to Court

“The trial is set for next year in federal court, with initial disclosures for discovery scheduled to take place next week. The publishers’ “prayer for relief” seeks to destroy the Open Library’s existing books, and to soak the Internet Archive for a lot of money; in their response, the Archive is looking to have its opponents’ claims denied in full, its legal costs paid, and “such other and further relief as the Court deems just and equitable.” But what’s really at stake in this lawsuit is the idea of ownership itself—what it means not only for a library but for anyone to own a book….

The Internet Archive is a tech partner to hundreds of libraries, including the Library of Congress, for whom it develops techniques for the stewardship of digital content. It helps them build their own Web-based collections with tools such as Archive-It, which is currently used by more than 600 organizations including universities, museums, and government agencies, as well as libraries, to create their own searchable public archives. The Internet Archive repairs broken links on Wikipedia—by the million. It has collected thousands of early computer games, and developed online emulators so they can be played on modern computers. It hosts collections of live music performances, 78s and cylinder recordings, radio shows, films and video. I am leaving a lot out about its groundbreaking work in making scholarly materials more accessible, its projects to expand books to the print-disabled—too many undertakings and achievements to count….

For-profit publishers like HarperCollins or Hachette don’t perform the kind of work required to preserve a cultural posterity. Publishers are not archivists. They obey the dictates of the market. They keep books in print based on market considerations, not cultural ones. …

publishers would like to see libraries obliged to license, not to own, books—that is, continue to pay for the same book again and again. That’s what this lawsuit is really about. It’s impossible to avoid the conclusion that publishers took advantage of the pandemic to achieve what they had not been able to achieve previously: to turn the library system into a “reading as a service” operation from which they can squeeze profits forever….”