Industry & Advocacy News

Authors Guild and Other Organizations File Brief in Internet Archive Appeal

Open Library

March 29, 2024

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On March 22, 2024, the Authors Guild and 15 other creator groups filed a “friend of the court” brief in Hachette v. Internet Archive, the copyright lawsuit brought by four major publishers to stop the Internet Archive’s infringing Open Library program. Last year, the publishers scored a resounding victory in the case, when a federal district court in New York ruled that the Internet Archive’s practices constitute copyright infringement and are not fair use. The case is now on appeal before the U.S. Court of Appeals for the Second Circuit.

Our brief urges the court to uphold the district court’s decision in full, explaining that the Internet Archive “has created a vast, unauthorized online database of literary works that anyone in the world can access for free, which differs from the most flagrantly illegal pirate websites only by reason of its residing in a U.S. not-for-profit.” It describes the devastating effect this activity will have on creators’ livelihoods if allowed to continue. The impact is especially severe for sales of backlist books (i.e., those published more than one or two years prior), which are an important source of income for authors. In addition, authors often get their rights to out-of-print books reverted to them and republish them with a smaller publisher or through self-publishing. The Internet Archive argues that these books have no value and that it is doing the world a great service by posting them online regardless of their authors’ desires or plans for the books. In doing so, it defies copyright law by implicitly denying authors exclusive rights in formats that they have not yet chosen to make available.

The Guild surveyed its members and found that more than 67 percent of respondents received income from their older books, with 34.6 percent of authors reporting more than $100,000 from backlist sales over the life of the book. For back-in-print sales, 37 percent of authors reported receiving more than $10,000 over the life of the book. This income can make a critical difference in the lives of creators, particularly at a time when the total median author-related income is only $20,000 per year. Making these works available for free on the open internet would severely undercut these already-fragile markets.

“The Court should harbor no illusions,” the brief explains. “[T]he ostensibly public-spirited veneer of ‘library lending’ behind which [Internet Archive] seeks to disguise its massive infringement is a Trojan horse.” The Archive’s unsupported “controlled digital lending” theory “undermines the careful balancing of interests that Congress codified in the Copyright Act and poses a grave threat to the livelihoods of countless individual copyright owners.”

Joining the Guild on the brief are American Photographic Artists, American Society for Collective Rights Licensing, American Society of Media Photographers, Association of American Literary Agents, Canadian Authors Association, Dramatists Guild of America, European Visual Artists, European Writers’ Council—Federation des Associations Europeennes d’Ecrivains, International Authors Forum, National Press Photographers Association, National Writers Union, North American Nature Photography Association, Romance Writers of America, Sisters in Crime, Society of Authors, and Writers’ Union of Canada.

Although the Authors Guild is not party to the lawsuit, we brought the Internet Archive’s Open Library practices to the publishers’ attention in 2017 and have supported them throughout the litigation. To learn more about our work against Open Library’s infringement, including past statements, petitions, and letters, please visit authorsguild.org/advocacy/open-library.

Read the full brief here (PDF).