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Internet Archive’s Public Interest Defense May Fall Short

June 2, 2020, 9:44 PM

Book publishers’ copyright lawsuit against the Internet Archive could upend the free digital library’s coronavirus-driven initiative, and signal that nonprofit status and claims of public benefit don’t erase liability.

Authors and publishers’ concerns were simmering even before the nonprofit archive’s “National Emergency Library” prompted the lawsuit, filed Monday in the U.S. District Court for the Southern District of New York.

The initiative allows access to its 1.3 million books collection, removing the limit on how many copies can be checked out at a given time. The complaint asks for an injunction blocking dissemination of all the publishers’ works.

The Internet Archive poses the expanded services as an emergency library providing education tools in a pandemic. But its unfettered approach—and what the plaintiffs deemed “industrial scale” infringement—probably won’t hold up to the fair use analysis used in copyright trials, attorneys say.

The four major publishers could secure a preliminary injunction to force the Internet Archive to remove their works, copyright attorneys say. The volume of books allegedly infringed could also create a large degree of financial liability for the nonprofit, with statutory damages ranging between $750 and 30,000 per work infringed, and up to $150,00 if the infringement is deemed willful.

“I don’t think they have a leg to stand on regarding fair use,” said Jason Bloom of Haynes and Boone LLP, adding that he was a “little bit” surprised that it took the publishers as long as it did to sue.

“It’s not that different from a Napster-type situation,” he said, referring to the peer-to-peer file sharing service forced to shut down in 2001 after a court battle.

The Internet Archive claims many rightsholders have granted their blessing in the interest of educational access, and that they remove any works upon request.

The lawsuit is “disappointing,” Internet Archive founder Brewster Kahle said in an email, comparing its services to other libraries that acquire and lend books.

“This supports publishing and authors and readers,” Kahle said. “Publishers suing libraries for lending books, in this case, protected digitized versions, and while schools and libraries are closed, is not in anyone’s interest. We hope this can be resolved quickly.”

‘Dumping’ Copies

Groups like the Authors Guild and American Association of Publishers opposed the library even before restrictions were lifted. They, and the Copyright Alliance, issued statements supporting the lawsuit.

In its analysis of the emergency library, the Copyright Office noted last month that the four statutory fair use factors aren’t necessarily exhaustive, and that the court may consider other factors such as the national emergency.

The nonprofit could at least attempt its public policy arguments, the office wrote. The fact that works, especially education materials, are available for free would help its case, it said.

But the office, part of the Library of Congress, seemed skeptical that the Internet Archive could prevail on any of its possible defenses. Books primarily read for entertainment also seem to be available for checkout, it noted. A fair use defense would also be hurt by the fact that the library makes available full, untransformed works that may harm existing electronic markets for the originals, the office said.

Letting a nonprofit rely on a public service claim to engage in mass infringement would be a slippery slope, Marsha G. Gentner of Dykema Gossett PLLC said.

“I think just dumping copies of every conceivable book we can get our hands on with no restrictions,” she said. “I just don’t see how they can get away with that.”

Despite closed libraries, Covid-19 doesn’t prevent people from buying e-books, she said.

The Internet Archive’s promise to remove works at rightsholder request also won’t help it, Gentner said. She said she doesn’t know any instances where “an infringer saying, ‘Well, if you catch me I’ll stop,’” provides a defense.

The U.S. Court of Appeals for the Second Circuit’s 2015 finding that Google Books constituted fair use may be the best case law available to Internet Archive, attorneys said. But the case is different because Google’s tool only allowed searchers to find snippets of books, not entire works, they said.

Publishers may have work ahead to secure an injunction, as a judge is likely to ask them to list the works they want blocked from dissemination by the archive, intellectual property attorney Peter Toren said. Still, their likelihood of success on the merits of their case bodes well for a preliminary injunction, he said.

“I think based on what I understand, that the continued publication of these books on a website could be causing irreparable harm,” Toren said.

To contact the reporter on this story: Kyle Jahner in Washington at kjahner@bloomberglaw.com

To contact the editors responsible for this story: Roger Yu at ryu@bloomberglaw.com, Keith Perine at kperine@bloomberglaw.com

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