PVPF 2024

Publishers Secure Widespread Support in Landmark Copyright Battle With the Internet Archive

Discover the latest in the landmark copyright battle between book publishers and Internet Archive. Explore the implications of fair use and digital piracy.
on Mar 26, 2024

Major book companies are continuing their legal battle against Internet Archive's scan-and-lend library, hoping to bring it down permanently. IA's argument has previously been supported by authors and copyright specialists. However, the publishers have some significant investors as well. Former US politicians, judges, and legal scholars have signed new amicus briefs. Industry groups like the MPA and RIAA also support the publishers.

The Internet Archive (IA) is a nonprofit organization dedicated to preserving digital history for future generations. The digital library is a fervent proponent of a free and open Internet, having diligently archived the web over a quarter-century ago.

In addition to preserving the web, IA maintains a library with a diverse variety of digital media, including books. Staying loyal to the centuries-old library concept, IA customers can also borrow books that have been scanned and digitized in-house.

Publishers versus Internet Archive.
The Internet Archive's (IA) self-scanning service differs from other libraries' license arrangements. Not all publishers are pleased with IA's approach, which sparked a big court struggle two years ago.

Hachette, HarperCollins, John Wiley, and Penguin Random House sued, alleging that IA's controlled digital lending (CDL) program violated their copyrights. Earlier this year, a New York federal judge ruled that the library is accountable for copyright infringement.

The court's decision effectively ended IA's self-scanning library, at least for books from the publishers named in the lawsuit. However, IA is not giving up without a fight, and in December, the non-profit submitted its opening brief at the Second Circuit Court of Appeals, trying to overturn the ruling.

High-Profile Support

The high number of amicus papers filed by third parties demonstrates the gravity of this court struggle. Previously, IA was supported by copyright scholars and the Authors Alliance, among others.

A few days ago, another wave of amicus briefs arrived before the Court of Appeals, this time in support of the publishers who filed their reply last week. In more than a few filings, significant persons and groups urge the Appeals Court not to overturn the district court decision, stating that doing so would seriously harm copyright holders' interests.

The briefs include positions from industry organizations such as the MPA, RIAA, IFPI, Copyright Alliance, Authors Guild, numerous writers unions, and many more. Legal scholars, professors, and previous government officials also weighed in.

RIAA, MPA, et al.
The RIAA, MPA, NMPA, and News Media Alliance all filed an amicus brief. These industry groups see a connection between the damage Napster and BitTorrent had on music and movie revenues and the threat that IA's self-scanning collection poses today.

"Digital piracy has had a significant economic impact on those industries and, as a result, their ability to invest in new creative works and the artists who create them." The Internet Archive's fair use principle poses an equally serious threat.

Industry organizations fear that allowing the Internet Archive to scan and lend books will set a precedent for other forms of material. For example, if services could lend music, movies, or news to the broader public, these sectors may face comparable issues.

"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 wrote in a blog post.

"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."

The amici view IA's digital library as "unambiguous copyright infringement," rather than something fair. "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," the authors write.

Copyright Experts, Professors, and Lawmakers.

Over a dozen professors and researchers of copyright and intellectual property law have filed a second amicus brief. They emphasize that IA's conduct should not be viewed as "transformative" fair use, stating that the library provides a "substitution" for books legally available from publishers.

This distinguishes the case from recent legal precedents, such as the Google works case, in which Google's widespread usage of copyrighted works was considered fair use.
"IA's exploitation of copyrighted books is thus diametrically opposed to the transformational copying discovered in Google Books and HathiTrust." IA subscribers do not have access to a 'utility-expanding' searchable database.

What it does provide is access to full-text books, which are clearly competitive with the ones licensed by book publishers," the legal scholars argue.

Another amicus brief provides additional heavyweight support for the publishers. This includes former judges, as well as two dozen government officials and congressmen, including former House Judiciary Committee Chairs Lamar Smith and Bob Goodlatte.

This brief also dismisses the Internet Archive's fair use arguments, presenting the library as a threat instead.

"IA does not further the public interest; rather, it destroys incentives to develop and distribute publications that benefit society. Thus, its activities are clearly not covered by fair use," their brief states.

IA and AI

The third amicus brief we'd like to emphasize comes from a diverse group of international and regional trade organizations based outside the United States. These organizations include the International Publishers Association, the International Video Federation, and the Association of Canadian Publishers.

These groups likewise reject the fair usage argument. They emphasize that, in addition to directly competing with the interests of publishers, IA's library poses an indirect 'artificial intelligence' danger because digitized books can be utilized as AI training materials.

"The Internet Archive is an apparent source of high-quality AI training materials because they have been carefully edited and improved by publishers.

Entering the terms 'Internet Archive DRM' into any search engine yields a list of links to software tools that remove the Internet Archive's DRM system, as well as instructions on how to use them.

"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 groups argue.

To summarize, the book publishers have a lot of outside support for their legal case. However, it remains to be seen if any of these amici, including those who support IA, will have an impact on the appeal's final conclusion.