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As the US music industry wins $1 billion from an internet service provider...

US publishers launch lawsuit against Internet Archive


ON MONDAY 1 June four major US commercial publishers filed a lawsuit against the Internet Archive for "willful mass infringement" of copyrights by scanning books and distributing copies on the and websites. They have been doing this without permission from, or payment to, the publishers or authors of the works - recently under the banner of a "National Emergency Library".

The lawsuit was filed in Federal court in New York City by Penguin Random House, Hachette Book Group, John Wiley & Sons, and HarperCollins Publishers. These are members of the Association of American Publishers (AAP), which was one of 40 signatories of a joint "Appeal from the Victims of Controlled Digital Lending" issued in 2019 - alongside authors' organisations including the US National Writers Union. Two of the publishers are US subsidiaries of European parent companies - Hachette Livre and Bertelsmann. These are members of the Federation of European Publishers (FEP), which also signed the Appeal.

The court complaint is brought only by the four named publishers. It is not a class action and no authors nor organisations of authors are (yet) parties to it.

The complaint addresses the Internet Archive's book-scanning projects and its so-called "Controlled Digital Lending" (CDL) scheme. This is not new: the campaign Web address was registered anonymously on 10 November 2017. The so-called "National Emergency Library" is practically a public relations campaign for the concept - see "Vigorously denounce covid opportunism!" The difference is that the IA has removed the supposed limit on how many copies of a work can be "checked out" at once.

As the US Authors Guild noted in a statement in 2019: "Controlled Digital Lending Is Neither Controlled nor Legal". There are strong legal arguments about specific points of US law on so-called "fair use" and on "exhaustion" of copyright when a book is sold. And there's the technical question of "borrowers" ending up with permanent copies of the ebooks.

The US National Writers Union (NWU) last year co-ordinated an Appeal from the Victims of CDL against the practice. Its response to CDL is here. It has pointed out that the answer to the challenge of education in a pandemic is not to give away authors' work, but Federal funding for distance learning, during the pandemic - and after.

On 29 May the NWU facilitated an online meeting between representatives of the Internet Archive, the lead authors of the Statement and White Paper supporting CDL, signatories of the Appeal from the Victims of CDL, and other authors' organisations. So far as we know, it was the first time the Internet Archive or its supporters had heard directly from any of the victims of their activities. It agreed to the meeting only on condition that it be off the record: an NWU participant comments "we can't say much about their response, other than that most of our specific questions remain unanswered."

Bloomberg News reported the case under the headline Internet Archive's Public Interest Defense May Fall Short: "I don't think they have a leg to stand on regarding fair use," lawyer Jason Bloom of Haynes and Boone told Bloomberg. "It's not that different from a Napster-type situation," he said - the file "sharing" service was shut down in 2001 owing $26 million for unauthorised distribution of music.

The Internet Archive is distributing over 1.3 million books without permission. Under US law the penalty for "willful" infringement of one copyright-registered work can be as high as $150,000 (see below). Assuming that 1 million of those books are still in copyright, and assuming that the case can develop into a class action on behalf of all the authors, in theory the IA could be liable for $150 billion. [This is, for the avoidance of doubt, a joke about inflated claims.] The complaint lists 127 books from the four publishers, leading to a current maximum penalty of $19,050,000.

Meanwhile in Germany...

The publisher S. Fischer Verlag last year sued the Internet Archive. The Archive tried to argue that scanning books published in Germany, and distributing copies online, to readers in Germany, was not subject to German law. The Higher Regional Court in Frankfurt am Main ruled, oddly enough, that German law applies see (press release in German). The case continues.

US music industry wins $1 billion from COX

In December 2019 a jury awarded the major US record labels $1 billion for copyright infringement against cable television and telecommunications company COX Communications. That represented $99,830.29 for infringement of each of 10,017 songs.

On 3 June a court rejected arguments that the award was excessive. COX is allowed to challenge the count of 10,017 songs.

It is certainly established that the infringement was "willful": in an email produced at the trial the former head of Cox's Abuse Group wrote "Fuck the DMCA," referring to the Digital Millennium Copyright Act - which sets the conditions under which internet corporations in the US are shielded from prosecution for infringing works uploaded by users so long as they act promptly to take them down when notified.