The court’s ruling vindicates six years of advocacy by the Authors Guild against Open Library’s illegal scanning and distribution of books, finding the Internet Archive’s “fair use” defense to be entirely without merit.
March 26, 2023
March 26, 2023 (New York): The Authors Guild welcomes U.S. District Judge John Koeltl’s decision granting the publishers’ motion for summary judgment in their copyright infringement litigation against the Internet Archive regarding its Open Library program. By ruling that the Internet Archive’s practices violate copyright law and are not fair use, the decision vindicates the arguments that the Authors Guild has made for years.
“The decision puts a hard stop to the massive copyright violations of the Internet Archive’s so-called Open Library, a piracy operation that illegally copied millions of books by American authors without permission or compensation,” remarked outgoing Authors Guild president Doug Preston. “Even more importantly, it is a resounding legal refutation of the efforts of tech companies to undermine our nation’s copyright and intellectual property protections.”
“This is a victory not just for publishers, but for all authors,” said Mary Rasenberger, CEO of the Authors Guild. “For years, the Internet Archive has shown a shocking disregard for the protests and pleas of authors to stop the illegal copying and distribution of their works. It turned a deaf ear to our proposal for a licensing solution that would enable Open Library to legally distribute the scans. It ignored the fact that authors earn income—typically 25 percent—from library licenses. If the Internet Archive had prevailed in the lawsuit, not only would this market have been completely eviscerated, it would have given anyone carte blanche to scan and distribute books while calling themselves a library. As we have argued from the beginning and the court’s decision finally makes clear, there is no legal justification for and nothing ‘transformative’ about the wholesale copying and distribution of books. It is theft, pure and simple.”
We congratulate the four publishers—Hachette Book Group, HarperCollins, Penguin Random House, and Wiley—and are enormously grateful to them not only for bringing the case but also for doing a superb job litigating it. While the Authors Guild was not party to the lawsuit, we brought the Internet Archive’s Open Library practices to the publishers’ attention back in 2017 and supported them in bringing the case and throughout the litigation. Last August, the Authors Guild submitted an amicus brief on the publishers’ behalf, which more than twenty author organizations signed onto.
The Authors Guild’s fight against the Internet Archive’s illegal scanning and distribution of copyrighted books long predates the suit, going back to 2017 when we offered to help the Internet Archive license rights from authors, since the law was clear that it needed permission. Instead of working with us, the Internet Archive convened a group of copyright minimalist scholars who created a baseless fair use theory they called “controlled digital lending,” or “CDL” (though as we pointed out, it was neither controlled nor legal). As former Guild president Scott Turow described the practice, it was nothing but a “smash and grab.”
In 2018, the Authors Guild led a campaign instructing authors how to send takedown requests, in which thousands of authors participated. At the same time, nearly 2,500 authors signed the Guild’s letter condemning Open Library’s mass unauthorized copying, display, and distribution of books, which took money directly out of authors’ pockets and violated copyright law. However, once the Internet Archive announced it was using CDL, it stopped complying with takedown notices, and claimed its operation was protected fair use.
In 2020, when the Internet Archive rolled out its National Emergency Library, making books available without even the negligible protection of CDL, we launched another takedown campaign and petition, which was signed by more than 6,000 authors. We explained why the National Emergency Library was illegal despite the magnanimous pretense of a public benefit and fought back against misinformation campaigns that grossly mischaracterized the lawsuit against Open Library as an attack on libraries. In an op-ed published in The New York Times, Doug Preston laid out why the National Emergency Library was not a library but a book piracy website that harmed authors and publishers and undermined “the entire publishing ecosystem and all those who depend on it, from publicists and book designers to editors and agents.” At our request, Senator Thom Tillis sent Internet Archive founder Brewster Kahle a letter criticizing the Internet Archive for taking the law into its own hands. Senator Tillis wrote that he was “deeply concerned” that the Internet Archive had put thousands of copyrighted books online without restrictions for free, and that in doing so, it was “operating outside of the boundaries of the copyright law.”
Since first understanding the extent of Open Library’s infringement, the Authors Guild has maintained that the Internet Archive’s fair use claims are completely baseless, even under today’s expanded fair use doctrine, and that Open Library (and the defunct National Emergency Library) are mass illegal scanning and distribution operations. There is no simply no precedent under the law for allowing the scanning of thousands of books and making the copies available in their entirety.
Now, Judge Koeltl’s 47-page decision has finally put the Internet Archive’s fair use claims to rest. Cutting right through the Internet Archive’s sophistry, the opinion states that “IA in no way transforms the use of the Works in Suit. It merely creates derivative ebooks that, when lent to the public, compete with those authorized by the Publishers. The promise of a one-to-one ‘owned-to-loaned ratio,’ whether cast under Section 109 or fair use, is no defense.”
After discussing the Internet Archive’s fair use arguments at length under each of the four fair use factors, the court found them all to be without merit. The decision states that, “at bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book. But no case or legal principle supports that notion. Every authority points the other direction.”
In their complaint, the publishers had requested a permanent injunction against Open Library and statutory damages for each work that was infringed. The decision directs the parties to submit proposals for a judgment, which will be entered in the coming weeks, and we fully expect a permanent injunction to be issued along with damages.
To learn more about our work against Open Library’s infringement, including past statements, petitions, and letters, please visit authorsguild.org/advocacy/open-library.
With more than 13,000 members, the Authors Guild is the nation’s oldest and largest professional organization for published writers. It advocates on behalf of working writers to protect free speech, freedom of expression and authors’ copyrights; fights for fair contracts and authors’ ability to earn a livable wage; and provides a welcoming community for writers and translators of fiction, nonfiction, poetry and journalism. Through its educational and charitable arm, the Authors Guild Foundation, it also offers free programming to teach working writers about the business of writing, as well as organizing public events that highlight the importance of a rich, diverse American literary culture and the authors that contribute to it.
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