Internet Archive Files Appeal in Publishers’ Lawsuit Against Libraries | Internet Archive Blogs

“Today, the Internet Archive has submitted its appeal [PDF] in Hachette v. Internet Archive. As we stated when the decision was handed down in March, we believe the lower court made errors in facts and law, so we are fighting on in the face of great challenges. We know this won’t be easy, but it’s a necessary fight if we want library collections to survive in the digital age.

Statement from Brewster Kahle, founder and digital librarian of the Internet Archive:
“Libraries are under attack like never before. The core values and library functions of preservation and access, equal opportunity, and universal education are being threatened by book bans, budget cuts, onerous licensing schemes, and now by this harmful lawsuit. We are counting on the appellate judges to support libraries and our longstanding and widespread library practices in the digital age. Now is the time to stand up for libraries.”

We will share more information about the appeal as it progresses….”

Judge Approves Final Injunction in Publishers, Internet Archive Copyright Case

“After more than three years of litigation, it took judge John G. Koeltl just hours to sign off on the parties’ negotiated consent judgment—but not without a final twist. In a short written opinion made public yesterday, Koeltl sided with the Internet Archive in a final dispute, limiting the scope of the permanent injunction to cover only the plaintiffs’ print books that also have electronic editions available.

In a letter to the court, lawyers for the plaintiff publishers had argued that the injunction should cover all the plaintiffs’ commercially available books, whether the books have digital editions or not. “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’ letter argued. Furthermore, IA’s unauthorized digital editions create “clear potential market harm to the print book market,” the publisher letter claims, because a “straight, verbatim digital copy of the entire work is an obvious competing substitute for the original.”

In their letter to the court, IA attorneys argued that the injunction should be limited to the plaintiffs’ books that have digital editions available because that was what the suit addressed. “Because the parties did not have the opportunity in this case to litigate the degree to which the unavailability of digital library licensing would affect the fair use analysis, it is inappropriate for an injunction in this case, by its breadth, to effectively prejudge the outcome of that question,” IA attorneys argued.

Koeltl sided with the Internet Archive, holding that because the 127 works chosen for the suit were all commercially available works with digital editions, sweeping all the plaintiffs’ books into the final injunction risked being overbroad.”

Update: Consent Judgment in Hachette v. Internet Archive | Authors Alliance

“UPDATE: On Monday, August 14th, Judge Koeltl issued an order on the proposed judgement, which you can read here, and which this blog post has been updated to reflect. In his order, the judge adopted the definition of “Covered Book” suggested by the Internet Archive, limiting the permanent injunction subject to an appeal to only those books published by the four publisher plaintiffs that are available in ebook form.

After months of deadline extensions, there is finally news in Hachette Books v. Internet Archive, the case about whether Controlled Digital Lending is a fair use, which we have been covering since its inception over two years ago, and in which Authors Alliance filed an amicus brief in support of Internet Archive and CDL. On Friday, August 11th, attorneys for the Internet Archive and a group of publishers filed documents in federal court proposing “an appropriate procedure to determine the judgment to be entered in this case,” as Judge John G. Koeltl of the Southern District of New York requested.,,,:

Judgment Entered in Publishers, Internet Archive Copyright Case

“More than four months after a federal judge found the Internet Archive liable for copyright infringement for its program to scan and lend library books, the parties have delivered a negotiated agreement for a judgment to be entered in the case. But a final resolution in the case could still be many months, if not years, away, as Internet Archive officials have vowed to appeal.

The jointly proposed agreement includes a declaration that cements the key finding from Judge John G. Koeltl’s March 24 summary judgment decision: that the IA’s unauthorized scanning and lending of the 127 in-suit copyrighted books under a novel protocol known as “controlled digital lending” constitutes copyright infringement, including in the IA’s controversial “National Emergency Library” (under which the IA temporarily allowed for simultaneous access to its collections of scans in the the early days of the pandemic, when schools and libraries were shuttered)….”

Internet Archive’s Copyright Battle with Publishers Leads to Lending Restrictions * TorrentFreak

“The Internet Archive’s online book lending library will be severely limited to avoid copyright liability. The library and book publishers have agreed the terms of a judgment that leaves one crucial question open for the court. While restrictions are unavoidable, for now, the Internet Archive is eager to reverse the court’s liability ruling on appeal….”

The Internet Archive and leading book publishers find common ground in legal battle – Good e-Reader

“In a development that may mark a turning point in their legal dispute, the Internet Archive and a consortium of prominent book publishers have jointly informed a Manhattan federal court about their progress in resolving key aspects of their ongoing conflict concerning the Archive’s digital lending of scanned books, Reuters reported.

Pending acceptance, a consent judgment is poised to address several critical matters in the case, encompassing potential financial compensation and the extent of restrictions on the Archive’s lending practices. Importantly, the consent judgment holds the potential to pave the way for an appeal in response to U.S. District Judge John Koeltl’s previous ruling, which found that the Archive had infringed upon the publishers’ copyrights.

Under the proposed terms, the Archive would be obligated to make an undisclosed monetary payment to entities such as Lagardere SCA’s Hachette Book Group, News Corp’s HarperCollins Publishers, John Wiley & Sons, and Bertelsmann SE & Co’s Penguin Random House if the Archive’s appeal proves unsuccessful.

Additionally, the consent judgment would establish a permanent injunction preventing the Archive from lending copies of the publishers’ books without explicit permission while the appeal is pending. However, a point of contention remains as the parties urge Judge Koeltl to clarify whether this injunction exclusively pertains to books already available for electronic licensing or extends to books commercially accessible in any format….”

Book Publishers Are Trying to Destroy Public E-Book Access in Order to Increase Profits ? Current Affairs

“The publishers argued that the Internet Archive practices a form of “willful digital piracy on an industrial scale.” Judge Koeltl agreed, saying that although IA does not actually increase the number of books in circulation, “the Publishers hold exclusive publishing rights” and the IA “infringed the plaintiffs’ copyrights in 127 books (the “Works in Suit”) by scanning print copies … and lending the digital copies to users of the defendant’s website without the plaintiffs’ permission.” He says that they can only legally digitize books that are considered to be in the public domain,1 which would force them to remove more than 3.6  million copyrighted works currently on the site.  

Koeltl dismissed the Archive’s argument that their practices constitute “fair use,” which allows copying for criticism, comment, news reporting, teaching, scholarship, or research. To determine if a piece of content falls under fair use, judges consider nonprofit or educational purposes, transformation, and market effect. In his opinion, Koeltl gave lengthy explanations for why he believes IA is not fair use. Mike Masnick, the founder of Techdirt and one of the most prolific writers on fair use in the Internet age, gives Koeltl’s tortured logic the verbal flogging it deserves, arguing that the Archive’s lending is transformative, not for profit, and no more impactful to the market than the average library. But even setting aside the legal question of copyright infringement, we should still consider the destruction of the IA to be a bad thing for society. At bottom, this is a case of a cabal of powerful commercial interests using the legal system to bully a public organization that offers a superior service, completely for free, without stealing anything….”

In the Internet Archive Lawsuit, a Win for Publishers May Come at a Cost for Readers Everywhere | The Walrus

“Ostensibly, publishers and libraries ought to be on the same side: libraries aim to advance learning by providing free and open access to information; publishing literally means to disseminate to the public. Big publishers suing a digital library for furthering this common mission—during an unprecedented assault on libraries’ purpose and function—is a weird look. It’s also unclear what it actually does for writers. Most authors—some estimates say up to 70 percent—don’t earn royalties beyond their book advances and will never have the luxury of worrying about income from the sale of their works in digital formats. The funds under dispute, by and large, go straight back to the publishers.

This situation leaves writers awkwardly caught in the middle. Supporting libraries isn’t just an abstract feel-good principle: it can also have a material effect on a book’s fate. Libraries feature titles, offer programming, and choose how many copies to order. At the same time, writing is a financially precarious enterprise. The prospect of a library buying one copy of your book, scanning it, and lending it out ad infinitum is, admittedly, horrifying. But the Internet Archive decision doesn’t just prevent that outcome—it may also affect libraries’ rights to lend single scanned copies of books that they have already purchased….”

When You Buy a Book, You Can Loan It to Anyone. This Judge Says Libraries Can’t. Why Not? | The Nation

“While Judge John G. Koeltl’s opinion addressed many issues, all his reasoning was based on one assumption: that copyright primarily is about authors’ and publishers’ right to profit. Despite the pervasiveness of this belief, the history of copyright tells us something different….

In the Hachette case, a library that has purchased a copy of a print book digitizes it and lends the e-copy (that’s what CDL means) in place of the paper-and-ink original. The only thing that has changed is the book’s format. The change in format allows the buyer (library) to more effectively use the content it has purchased. Copyright protects a work—not a format—yet the justification used to stop CDL appears to be that the copyright owner has the right to profit repeatedly from the sale of the same content in a specific format to the same buyer, even if the buyer only ever needs one copy and already owns one copy.

Historically, copyright was intended to facilitate the efficient consumption and use of information, not to stand in its way. Libraries remain a critical part of the intended ecosystem, both by paying authors for the number of copies they use and by providing access to borrowers who cannot afford to purchase a book themselves. The weaponization of copyright to artificially limit technology’s reach where it would otherwise enable the buyer to use the work as intended when they bought it hurts all of us—and undermines the very purpose of copyright.”

The Internet Archive’s troubles are bad news for book lovers | The Spectator

“Increasingly, the future of the Internet Archive looks under threat. What the four publishers are demanding and seem set legally to enforce is, according to Kahle, the destruction of around ‘4 million digitised files… This would be a book burning on the scale of the Library of Alexandria… If digital learners have no access to millions of books, aren’t they effectively disappeared?’ …

‘In electronic form they can change all books in all libraries all at once and irreversibly without permission,’ says Kahle. ‘This is dangerous. It is not hypothetical, it is happening.’  With the future of genuine libraries looking increasingly shaky (nearly 800 have closed down in Britain alone in the past decade) and digital borrowing correspondingly on the rise, this licensing scheme has chilling implications for readers in search of an undoctored text. Also for a reading future in which their data is not open to being harvested and every turn of a page not captured by the big corporations.”

The complex politics of e-book lending | The Week

“That decision now looks set to have broad consequences. The four publishers alleged that the Internet Archive had engaged in “willful mass copyright infringement” that violated publishers’ intellectual property and cut into their profits — not only with the lockdown library but also its usual lending practices. Though Internet Archive argued it was legally allowed to lend out the copies under the fair use doctrine, U.S. District Court Jude John G. Koeltl ultimately sided with the publishers. “Although [Internet Archive] has the right to lend print books it lawfully acquired, it does not have the right to scan those books and lend the digital copies en masse,” Koeltl said in his opinion.

Now that the dust has settled, how are those on both sides of the debate making sense of Koeltl’s ruling and its reverberations for the publishing and literary world as a whole?…”

The Ruling That Threatens the Future of Libraries – The Atlantic

“If civilization ever falls to a zombie apocalypse or nuclear Armageddon, we will need to have preserved centuries of accumulated practical knowledge to rise again. And if humanity should go extinct, leaving nothing but our legacy, the alien explorers who discover the ruins of our society would struggle to interpret human history without some great store of information to guide them.

Maybe these postapocalyptic scenarios are far-fetched, but even if society is never, say, drowned by the seas in some climate-driven disaster, leaving the remnants of humanity clinging to a few small bits of land, the massive collection of knowledge accumulated by the Internet Archive, comprising millions of books, is an invaluable resource….”

The Ruling That Threatens the Future of Libraries – The Atlantic

“If civilization ever falls to a zombie apocalypse or nuclear Armageddon, we will need to have preserved centuries of accumulated practical knowledge to rise again. And if humanity should go extinct, leaving nothing but our legacy, the alien explorers who discover the ruins of our society would struggle to interpret human history without some great store of information to guide them.

Maybe these postapocalyptic scenarios are far-fetched, but even if society is never, say, drowned by the seas in some climate-driven disaster, leaving the remnants of humanity clinging to a few small bits of land, the massive collection of knowledge accumulated by the Internet Archive, comprising millions of books, is an invaluable resource….”

Publishers Get One Step Closer To Killing Libraries

Last Monday was the day of the oral arguments in the Big Publishers’ lawsuit against libraries in the form of the Internet Archive. As we noted mid-week, publishers won’t quit until libraries are dead. And they got one step closer to that goal on Friday, when Judge John Koetl wasted no time in rejecting every single one of the Internet Archive’s arguments.

The fact that the ruling came out on the Friday after the Monday oral arguments suggests pretty strongly that Judge Koeltl had his mind made up pretty quickly and was ready to kill a library with little delay. Of course, as we noted just last Wednesday, whoever lost at this stage was going to appeal, and the really important stuff was absolutely going to happen at the 2nd Circuit appeals court. It’s just that now the Internet Archives, and a bunch of important copyright concepts, are already starting to be knocked down a few levels.

I’ve heard from multiple people claiming that of course the Internet Archive was going to lose, because it was scanning books (!!) and lending them out and how could that be legal? But, the answer, as we explained multiple times, is that every piece of this copyright puzzle had already been deemed legal.

And the Internet Archive didn’t just jump into this without any thought. Two of the most well known legal scholars regarding copyright and libraries, David Hansen and Kyle Courtney, had written a white paper detailing exactly how and why the approach the Internet Archive took with Controlled Digital Lending easily fit within the existing contours and precedents of copyright law.

But, as we and others have discussed for ages, in the copyright world, there’s a long history of courts ignoring what the law actually says and just coming up with some way to say something is infringement if it feels wrong to them. And that’s what happened here.

A key part of the ruling, as in a large percentage of cases that are about fair use, is looking at whether or not the use of the copy is “transformative.” Judge Koeltl is 100% positive it is not transformative.

There is nothing transformative about IA’s copying and unauthorized lending of the Works in Suit.7 IA does not reproduce the Works in Suit to provide criticism, commentary, or information about them. See 17 U.S.C. § 107. IA’s ebooks do not “add[] something new, with a further purpose or different character, altering the [originals] with new expression, meaning or message.” Campbell, 510 U.S. at 579. IA simply scans the Works in Suit to become ebooks and lends them to users of its Website for free. But a copyright holder holds the “exclusive[] right” to prepare, display, and distribute “derivative works based upon the copyrighted work.”

But… there’s a lot more to “transformative” use than simply adding something new or altering the meaning. In many cases, fair use is found in cases where you’re copying the exact same content, but for a different purpose, and the Internet Archive’s usage here seems pretty clearly transformative in that it’s changing the way the book can be consumed to make it easier for libraries to lend it out and patrons to read it. That is, the “transformation” is in the way the book can be lent, not the content of the book.

I know many people find this strange (and the judge did here as well) saying things like “but it’s the whole work.” Or “the use is the same because it’s still just reading the book.” But the Supreme Court already said, quite clearly, that such situations can be fair use, such as in the Sony v. Universal case that decided VCRs were legal, and that time shifting TV shows was clear fair use. In that ruling, they even cite Congress noting that “making a copy of a copyright work for… convenience” can be considered fair use.

Unfortunately, Judge Koeltl effectively chops away a huge part of the Sony ruling in insisting that this is somehow different.

But Sony is plainly inapposite. IA is not comparable to the parties in Sony — either to Sony, the alleged contributory copyright infringer, or to the home viewers who used the Betamax machine for the noncommercial, nonprofit activity of watching television programs at home. Unlike Sony, which only sold the machines, IA scans a massive number of copies of books and makes them available to patrons rather than purchasing ebook licenses from the Publishers. IA is also unlike the home viewers in Sony, who engaged in the “noncommercial, nonprofit activity” of viewing at a more convenient time television programs that they had the right to view for free at the time they were originally broadcast. 464 U.S. at 449. The home viewers were not accused of making their television programs available to the general public. Although IA has the right to lend print books it lawfully acquired, it does not have the right to scan those books and lend the digital copies en masse.

But note what the Judge did here. Rather than rely on the text of what the Supreme Court actually said in Sony, he insists that he won’t apply the rules of Sony because the parties are different. But if the basic concepts and actions are covered by the Sony ruling, it seems silly to ignore them here as the judge did.

And the differences highlighted by the court here have no bearing on the actual issues and the specifics of fair use and the law. I mean, first of all, the fact that Koeltl claims that the Internet Archive is not engaged in “noncommercial, nonprofit activity” is just weird. The Internet Archive is absolutely engaged in noncommerical, nonprofit activity.

The other distinctions are meaningless as well. No, IA is not building devices for people to buy, but in many ways IA’s position here should be seen as stronger than Sony’s because Sony actually was a commercial operation, and IA is literally acting as a library, increasing the convenience for its patrons, and doing so in a manner that is identical to lending out physical books. Sony created a machine, Betamax, that copied TV shows and allowed those who bought those machines to watch the show at a more convenient time. IA created a machine that copies books, and allows library patrons to access those books in a more convenient way.

Also, the Betamax (and VCR) were just as “available to the general public” as the Internet Archive is. The idea that they are substantially different is just… weird. And strikes me as pretty clearly wrong.

There’s another precedential oddity in the ruling. It relies pretty heavily on the somewhat terrible fair use ruling in the 2nd Circuit in the Warhol Foundation v. Goldsmith case. That case was so terrible that we (at the Copia Institute) weighed in with the Supreme Court to let them know how problematic it was, and the Supreme Court is still sitting on a decision in that case.

Which means the Supreme Court is soon to rule on it, and that could very much change or obliterate the case that Judge Koeltl leans on heavily for his ruling.

Here, Judge Koeltl repeatedly goes back to the Warhol well to make various arguments, especially around the question of the fourth fair use factor: the effect on the market. To me, this clearly weighs towards fair use, because it’s no different than a regular library. Libraries are allowed to buy (or receive donated) books and lend them out. That’s all the Open Library does here. So to argue there’s a negative impact on the market, the publishers rely on the fact that they’ve been able to twist and bend copyright law so much that they’ve created a new, extortionate market in ebook “licenses,” and then play all sorts of games to force people to buy the books rather than check them out of the library.

Judge Koeltl seems particularly worried about how much damage this could do this artificially inflated market:

It is equally clear that if IA’s conduct “becomes widespread, it will adversely affect the potential market for the” Works in Suit. Andy Warhol Found., 11 F.4th at 48. IA could expand the Open Libraries project far beyond the current contributing partners, allowing new partners to contribute many more concurrent copies of the Works in Suit to increase the loan count. New organizations like IA also could emerge to perform similar functions, further diverting potential readers and libraries from accessing authorized library ebooks from the Publishers. This plainly risks expanded future displacement of the Publishers’ potential revenues.

But go back and read that paragraph again, and replace the key words to read that if libraries become widespread, it will adversely affect the potential market for buying books in bookstores… because libraries would be “diverting potential readers” from purchasing physical books, which “plainly risks expanded future displacement of the Publishers’ potential revenues.”

Again, the argument here is effectively that libraries themselves shouldn’t be allowed. And that seems like a problem?

Koeltl also falls into the ridiculous trap of saying that “you can’t compete with free” and that libraries will favor CDL-scanned books over licensed ones:

An accused infringer usurps an existing market “where the infringer’s target audience and the nature of the infringing content is the same as the original.” Cariou, 714 F.3d at 709; see also Andy Warhol Found., 11 F.4th at 50. That is the case here. For libraries that are entitled to partner with IA because they own print copies of books in IA’s collection, it is patently more desirable to offer IA’s bootleg ebooks than to pay for authorized ebook licenses. To state the obvious, “[i]t is difficult to compete with a product offered for free.” Sony BMG Music Ent. v. Tenenbaum, 672 F. Supp. 2d 217, 231 (D. Mass. 2009).

Except that’s literally wrong. The licensed ebooks have many features that the scanned ones don’t. And many people (myself included!) prefer to check out licensed ebooks from our local libraries rather than the CDL ones, because they’re more readable. My own library offers the ability to check out books from either one, and defaults to recommending the licensed ebooks, because they’re a better customer experience, which is how tons of products “compete with free” all the time.

I mean, not to be simplistic here, but the bottled water business in the US is an over $90 billion market for something most people can get for free (or effectively free) from the tap. That’s three times the size of the book publishing market. So, uh, maybe don’t say “it’s difficult to compete with free.” Other industries do it just fine. The publishers are just being lazy.

Besides, based on this interpretation of Warhol, basically anyone can destroy fair use by simply making up some new, crazy, ridiculously priced, highly restrictive license that covers the same space as the fair use alternative, and claim that the alternative destroys the “market” for this ridiculous license. That can’t be how fair use works.

Anyway, one hopes first that the Supreme Court rejects the terrible 2nd Circuit ruling in the Warhol Foundation case, and that this in turn forces Judge Koeltl to reconsider his argument. But given the pretzel he twisted himself into to ignore the Betamax case, it seems likely he’d still find against libraries like the Internet Archive.

Given that, it’s going to be important that the 2nd Circuit get this one right. As the Internet Archive’s Brewster Kahle said in a statement on the ruling:

“Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society—owning, preserving, and lending books.

This ruling is a blow for libraries, readers, and authors and we plan to appeal it.”

What happens next is going to be critical to the future of copyright online. Already people have pointed out how some of the verbiage in this ruling could have wide reaching impact on questions about copyright in generative AI products or many other kinds of fair use cases.

One hopes that the panel on the 2nd Circuit doesn’t breezily dismiss these issues like Judge Koeltl did.

The Internet Archive has lost its first fight to scan and lend e-books like a library – The Verge

“A federal judge has ruled against the Internet Archive in Hachette v. Internet Archive, a lawsuit brought against it by four book publishers, deciding that the website does not have the right to scan books and lend them out like a library.

Judge John G. Koeltl decided that the Internet Archive had done nothing more than create “derivative works,” and so would have needed authorization from the books’ copyright holders — the publishers — before lending them out through its National Emergency Library program….

The Internet Archive says it will appeal. “Today’s lower court decision in Hachette v. Internet Archive is a blow to all libraries and the communities we serve,” Chris Freeland, the director of Open Libraries at the Internet Archive, writes in a blog post. “This decision impacts libraries across the US who rely on controlled digital lending to connect their patrons with books online. It hurts authors by saying that unfair licensing models are the only way their books can be read online. And it holds back access to information in the digital age, harming all readers, everywhere.”

The two sides went to court on Monday, with HarperCollins, John Wiley & Sons, and Penguin Random House joining Hachette as plaintiffs….”