Statements

Authors Guild Applauds Consent Judgment Against Internet Archive’s Open Library but Calls for Wider Protection for All Books

Open Library

August 16, 2023

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The Authors Guild welcomes the proposed consent judgment jointly filed by the parties in Hachette Book Group v. Internet Archive, the copyright lawsuit brought by four major publishers who raised concerns about the Internet Archive scanning and making their books freely available, without permission, to the public on the Open Library website. In March, the court decisively agreed that the Internet Archive’s Open Library program blatantly infringed the publishers’ copyrights. It granted the publishers’ motion for summary judgment, rejecting the Internet Archive’s argument of fair use.

Consistent with that decision, on August 11th, the court entered the consent judgment declaring that the Internet Archive’s activities constitute copyright infringement. The ruling includes a permanent injunction strictly prohibiting the Internet Archive from distributing books over which these publishers hold rights, both within the confines of the U.S. and in transactions involving the U.S. externally. The parties could not agree on one issue, which they posed to the court—whether the Internet Archive had to remove books that were available in print but not for e-licensing. In a surprising decision, the court adopted the Internet Archive’s proposal and limited the injunction to books also available for electronic licensing.  

The Authors Guild is very disappointed that the court adopted this limitation. The injunction now leaves many authors’ books unprotected, including older books that may be out of print but that the author is planning to or may later want to republish, as well as books that the author for any number of reasons does not want made available in electronic form. It defies copyright law by implicitly denying authors exclusive rights in formats that they have not yet chosen to make available. Authors often get their rights to out-of-print books reverted to them and republish them with a smaller publisher or though self-publishing.

Although the potential market for these older out-of-print books may not be big enough for the original publisher to want to invest in keeping the book, they can be an important source of revenue for authors. As we have argued throughout this case, when these books are made available for free on the open internet through Open Library or any library under the controlled digital lending theory, it usurps the potential markets for the print copies as well as potential ebooks. While it may not cause huge losses in dollars for a big company, the impact on authors can be great.

“Authors can earn hundreds or thousands of dollars from out-of-print books that they sell themselves,” said Mary Rasenberger, CEO of the Authors Guild. “That is meaningful income for most authors when the mean full-time author writing earnings are just $20,300 per year. Making those books available for free on the open internet under the controlled digital lending theory will destroy the markets for those books—precisely because they are so small.”

The decision on the merits stands, however, reaffirming that digitizing and posting any copyrighted books on Open Library without permission is infringing. “This agreement underscores what the court made clear in its decision,” said Rasenberger. “The wholesale copying and distribution of books without permission is copyright infringement and would devastate the livelihoods of authors.”

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 supported them throughout the litigation, including by submitting an amicus brief to the court that was joined by over twenty other organizations. To learn more about our work against Open Library’s infringement, including past statements, petitions, and letters, please visit authorsguild.org/advocacy/open-library.