“Plaintiffs have produced a vast wealth of detailed sales and related financial data concerning the Works in Suit, totaling over 670,000 rows of data in Excel. Now, after the close of document discovery and on the eve of depositions, IA seeks to compel the production of “commercial performance data,” broken down by month, distribution channel, price and income, for all other books published by the Plaintiffs since 2011 – an undertaking that would involve a massive amount of data concerning more than 500,000 titles. And IA makes this extraordinary demand in order to rifle through an enormous reservoir of highly proprietary data concerning books that are not the Works in Suit, all in an effort to somehow select “for each work in suit, one or more comparable books that were not available for digital lending” on IA’s system. Dkt. 47, 2. In other words, because the significant financial data already provided concerning the Works in Suit apparently does not support IA’s theory on market harm, IA wants access to millions of data points concerning Plaintiffs’ entire book catalogues. IA argues it is entitled to do this in order to see if any evidence might exist to support the inherently incredible theory that copying entire books and distributing them to any member of the public worldwide upon demand does not compete with Plaintiffs’ sales of the same books. Even worse, IA’s quest rests on the palpably false theory that it can quantify the harm caused by its infringement by comparing the sales of completely different books. Books are not interchangeable widgets and marketplace performance is driven by countless indeterminate and changing facts. In short, Defendant’s letter motion should be denied because the enormous and costly burden to Plaintiffs far outweighs the negligible value (if any) of the evidence sought, especially given the lack of legally relevant results that it will yield and the delays it will cause to the case….”
“Pursuant to Local Civil Rule 37.2, Defendant Internet Archive respectfully requests a pre-motion discovery conference regarding a motion to compel the production of information regarding the commercial performance of books published by Plaintiffs. In the above-captioned lawsuit, Plaintiffs contend that the Internet Archive infringed Plaintiffs’ copyrights by the non-profit digital lending of library books. The Internet Archive maintains that the challenged lending constitutes fair use under 17 U.S.C. § 107. In considering fair use, one factor courts consider is “the effect of the use upon the potential market for or value of the copyrighted work.” Plaintiffs claim that the Internet Archive’s digital library lending has a negative effect on the market for or value of the works. The Internet Archive disagrees, and wishes to bring forward evidence showing that lending had little or no effect on the commercial performance of the books being lent, compared to books that were not lent….”
“Corporate publishing wants to turn all readers into renters. We’re trying to stop them….
Libraries should pay only once for each copy of an ebook, as the Open Library did for the new Brick House book, so that they can lend it to their patrons forever, and nobody—no government, business, or regulatory body—will ever be able to stop them.”
“When I heard about the lawsuit for copyright infringement launched on 1st June 2020 in the US by four major publishers (Hachette, Penguin Random House, Wiley, HarperCollins) against the Internet Archive for its Open Library, I couldn’t believe it. I thought this was a bad dream, that turned into a nightmare with the lawsuit scheduled for trial from 12 November 2021.
I briefly thought we were back in the 1990s, when publishers were fearing digital piracy and copyright infringement while threatening a few pioneers with lawsuits. But we are in 2021….
The Internet Archive has been here for 25 years. It knows about its trailblazing power to promote reading for all and education for all. The movement it has created is unstoppable. Why a lawsuit instead of a partnership?”
Abstract: This article analyzes the role of copyright doctrine and case law in preserving the institutional function of libraries—both on- and offline—as trusted and, in principle, neutral hubs equalizing access to credible information and knowledge in societies with structural inequalities. In doing so it examines the ongoing Hachette v. Internet Archive litigation before the US District Court of the Southern District of New York in the context of earlier copyright cases, finding that there is a persistent need for electronic access to library material online.
Libraries have traditionally served an important role as reserved spaces for legally permissible distribution of books outside of markets. Copyright law, however, has the potential to hinder the fuction of libraries and other cultural heritage institutions particularly in equalizing access to knowledge. While there exist some exceptions and limitations that partially alleviate this, their applicability in the digital environment is still contested. Two novel challenges are interfering: first, an unmet and contentious need for emergency access to electronic library material to be granted online, and second, the need to counteract historical biases and misinformation, both of which multiply when spread within a hyper-connected and digitized society. In order to ensure electronic access to credible information and knowledge, policymakers must address these challenges strategically and reassess the needs of subjects and institutions that are currently subject to copyright exceptions.
Hachette v. Internet Archive follows a string of copyright cases that involved challenges to digitization without permission and to providing electronic access to digitized library material. The plaintiffs in Hachette v. Internet Archive, four publishers, brought copyright claims against the Internet Archive for the latter’s operation of a “National Emergency Library” within the context of the COVID-19 pandemic. The case introduces a new dimension to existing debates around electronic access to library material, particularly around e-lending, raising the question: Can emergencies justify additional exceptions to copyright laws covering electronic access to library material, and if so, under what circumstances?
After analyzing the relevant settled case law and the ongoing litigation against the Internet Archive and then looking back into the history of and rationale for copyright laws, the article advances a normative claim—that copyright should provide better support to libraries and digital libraries in particular (broadly defined) as the institutional safeguards of our literary treasures. Libraries have a public service mandate to preserve, curate, and provide access to a plurality of original and authoritative sources, and thus ultimately aspire not to compete in the marketplace but to become trusted hubs that equalize access to knowledge. In the context of a society currently struggling to fight historical biases and (online) misinformation, providing libraries with the legal support needed to fulfill this mandate will enable them to more effectively safeguard and provide equal access to (at least relatively) credible information and knowledge, including in the digital environment.
“On June 1, 2020, four publishing houses, Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC, filed before the US District Court for the Southern District of New York a copyright infringement action against the Internet Archive for the Archive’s operation of what it called a “National Emergency Library” (NEL) after the first US shelter-in-place orders in response to the COVID-19 pandemic. Indeed, on March 24, 2020, the Internet Archive had announced the launch of a temporary online NEL to support “emergency remote teaching, research activities, independent scholarship, and intellectual stimulation while universities, schools, training centers, and libraries were closed due to COVID-19.” In their announcement the Archive called on authors and publishers to support the effort, which would ensure “temporary access to their work in this time of crisis.” It provided an opt-in option for authors who wanted to donate their book(s) to the NEL, and an opt-out option for authors who wanted to remove their book(s) from the NEL….
In my recent article, A Public Service Role for Digital Libraries: The Unequal Battle Against (Online) Misinformation Through Copyright Law Reform and the Emergency Electronic Access to Library Material (forthcoming, 31 Cornell J.L.& Pub. Pol’y_ _ (2021)), I examine the ongoing Hachette v. Internet Archive litigation, placing it in the context of earlier US copyright case law that deals with the digitization or the making available of copyrighted works for educational, research, and other purposes (notably: Authors Guild v. Google, Authors Guild v. HathiTrust, and Cambridge University Press v. Becker). There is also a global debate focusing on similar issues, apparent, for example, in similar cases brought before courts in Europe (Technische Universität Darmstadt v. Eugen Ulmer KG and Vereniging Openbare Bibliotheken v. Stichting Leenrech), India (University of Oxford v. Rameshwari Photocopy Service), and Canada (CCH Canadian Ltd v. Law Society of Upper Canada and the recent York University v. Access Copyright)….”
“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. …”
“Over the past decade, Silicon Valley’s tech behemoths have discreetly and methodically tightened their grip on American schools, and the pandemic has given them license to squeeze even tighter. By 2017, tens of millions of students were already using Google Chromebooks and apps for reading, writing, and turning in their work. Google Classroom now has more than 100 million users worldwide—nearly seven times the number reported in The New York Times three years ago. When we emerge from the pandemic, schools will be even more reliant on such systems. Industry is bolting an adamantine layer of technology onto the world’s classrooms, in what amounts to a stealth form of privatization….
But in practice, this convenience comes at a staggering cost. Billion-dollar companies like Follett and EBSCO are renting e-books to schools each year, rather than selling them permanent copies. By locking school districts into contracts that turn them into captive consumers, corporate tech providers are draining public education budgets that don’t have a penny to spare….
So why not shop around for a better deal? She can’t. Just as you can’t use iPhone apps on your Android phone, a school district’s choice of software providers locks administrators into a tangled web of agreements, training, and financial and organizational investments that publishers exploit to their advantage. California requires providers to sign a privacy agreement promising not to sell student data, further limiting options, Woodcock said, because not all providers are willing to sign….
Woodcock proposes what is surely a fair deal: Schools should be able to purchase e-books outright, rather than having to rent them. “I buy it, I own it. It doesn’t go away.”
Another obvious way to relieve the pressure on schools would be to expand the use of free public resources like the Internet Archive’s Open Library, which lends e-books on traditional library terms (you can’t download books from the Open Library; you can only borrow and read them). Early in the pandemic, the Open Library made waves by creating a temporary resource, the National Emergency Library, dropping restrictions on the number of people who could access a given title simultaneously. With bookstores, libraries, and schools closed all over the world, Internet Archive staff reasoned, students needed emergency access to books.
The suit seeks to destroy the Open Library altogether. But what publishers truly want is the end of ownership. If they win, books will someday become like movies on Netflix—something that schools, and all of us, will have to keep paying for forever….”
“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….”
“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. …”
“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….”
“Libraries have a crucial role in a democratic society. They ensure that marginalized groups have free access to books and that knowledge is preserved for future generations.
But this role is under threat. We urgently need your support to protect the right of libraries to continue doing their vital work.
Borrowing digital books is a lifeline for people who cannot physically reach a library, such as those in rural communities or affected by an emergency, as well as for people with print disabilities.
Libraries rely on a well-established practice known as controlled digital lending to reach these communities. The practice allows libraries to lend out each book they own in either a physical or a digitized format.
Digitizing books also enables libraries to fulfill their age-old role as guardians of cultural posterity. As library shelf space grows increasingly limited due to lack of funding, many valuable collections are saved from landfill only by being digitally archived.
A new lawsuit by four corporate publishers against the Internet Archive attempts to outlaw controlled digital lending. Libraries would no longer be able to lend digital versions of their books or digitize their collections. …”
“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.” …”
“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.” …”
“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….”