Publishers vs Internet Archive – huge implications for US copyright law and piracy

Hands hold paper with copyright symbol. International legal righ
Photograph © 1STunningART / Adobe Stock
Teddy McDonald

Teddy McDonald

Teddy joined the SoA in February 2020 where he assists the Communications department and works on the SoA’s campaigning projects.

We are watching with interest the ongoing lawsuit in New York between Hachette, HarperCollins, Penguin Random House and Wiley, against the Internet Archive. The outcome of the case could have huge implications for US copyright law and a victory for the Internet Archive would be a victory for pirate sites illegally distributing copyright-protected books.

San Francisco-based Internet Archive, which ‘lends’ scanned copies of books to its users under highly controversial Controlled Digital Lending practices, has previously attracted criticism from authors and industry professionals by making in-copyright works available free of charge without the permission of authors and rightsholders. The website usually limits book downloads to one user at a time, however under their ‘emergency’ setup since the start of the Covid-19 outbreak they have removed the limit. The website has never restricted downloads geographically.

The lawsuit

In a motion for summary judgment filed this week, lawyers for the four publishers argued that the Internet Archive’s continued practice of scanning and lending copyright-protected books is a massive piracy operation ‘masquerading as a not-for-profit library’. The Internet Archive has defended its position, saying it does not harm authors or publishers and its scanning comes under American fair use law.

To be clear, whatever the outcome of this US case, the Internet Archive’s practices are undoubtedly an infringement in English law which does not have a similar fair use doctrine.

The Society of Authors has taken a clear stance against the Internet Archive’s practices on many occasions. In particular, at the beginning of the Covid-19 health crisis, as authors faced cancelled bookings, contracts and other financial hardship, in an unprecedented attack on the rights of authors and publishers, the Internet Archive announced that it would offer unlimited lending of its collection ‘to serve the nation’s displaced learners’. The site stoked further controversy in November 2021 when it teamed up with The National Library of New Zealand and proposed to digitise 600,000 books from its overseas collection, including thousands of in-copyright books – plans which were put on hold after international outcry.

We hope that the federal judge will correctly apply the law and rule in favour of the publishers, signalling the importance of copyright and preserving the rights of authors and publishers across the world.

Commenting on the case, Society of Authors chief executive Nicola Solomon said:

Strong copyright laws are essential to ensure that authors are paid for their work. We want more people to read more books, and legitimate libraries are a great way to promote a culture of reading and ensure authors are paid fairly for book lending. Pirate sites on the other hand actively undermine authors. It is vital to support the authors without whom those books wouldn’t exist. Piracy is not a victimless crime.

Are your books on the Internet Archive?

If you see one of your copyright-protected works available for download from the Internet Archive, we recommend using the Authors Guild pro forma template takedown letter below to demand its removal:

Dear Internet Archive,

I am the author of the book(s) noted below.

It has come to my attention that, without permission from either me or my publisher, *[insert name]*, you are making my book(s) available to read and/or download on your website, www.archive.org.

Please remove my book(s) from the National Emergency Library website, Open Library.org, Internet Archive, and any other website(s) owned or controlled by you.

My book(s) is/are entitled: *[list all books made available for reading on or downloading from either site without permission].*

They are located at the following URLs on your site: *[provide URL for each book].*

My contact information is: *[insert address, telephone number, and email address].*

I attest under penalty of perjury, that I have a good faith belief that Internet Archive’s use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and further that the information in this notification is accurate, and that I am the copyright owner.

Electronic signature: *[provide e-signature or type name]*


LINKS:

How would you improve copyright and piracy claims?

22 October 2020

SoA calls for ‘all-encompassing approach’ to support cultural and creative industries

21 July 2020

SoA joins call to shut unlawful ‘National Emergency Library’ now

27 April 2020