Update 31 August: Following the judge’s findings that Internet Archive’s practices were unlawful, the plaintiffs, Hachette Book Group, HarperCollins Publishers, Penguin Random House and Wiley (US divisions) have submitted a joint proposal with the Internet Archive regarding the judgment to be entered in the court case. They have asked that a permanent injunction be entered, preventing the illegal distribution of the named plaintiffs’ full catalogues of in-copyright books, including their use ‘in, from or to the United States.’ This is subject to IA’s right to appeal the case.
This includes a side letter to ‘motivate IA to apply the injunction in the consent judgement to all of the Association of American Publishers’ (AAP) member companies affected by IA’s infringement’. AAP have agreed not to fund another lawsuit over infringement from the past three years for other AAP publishers, in exchange for IA agreeing to extend the settlement of terms to all other AAP members, “creating an efficient resolution for these aggrieved rightsholders”. It should be noted that this would not cover self-published authors or those published by non-AAP members, but it is hoped that IA would honour the injunction for such books.
The parties couldn’t agree on the issue of whether IA must remove books that were available in print but not for e-licensing. We are disappointed that the American court adopted IA’s proposal and limited the injunction to books also available for electronic licensing. This leaves many books unprotected, such as out of print books that the author may wish to later republish, as well as books that they may not wish to be made available in electronic form for whatever reason. The Authors Guild commented that the injunction “defies copyright law by implicitly denying authors exclusive rights in formats that they have not yet chosen to make available.”
To demand their removal, use the Authors Guild pro forma template takedown letter at the bottom of this article.
We welcome this week’s news that four publishers have been granted summary judgment in the US District Court in New York against San Francisco-based Internet Archive to prevent its unauthorised bulk scanning and uploading of books to its Open Library platform. We have been following the case with interest since last year.
The Internet Archive has consistently tried to defend this practice on the basis that this piracy amounts to fair use of authors’ work. The Court has roundly dismissed that argument and confirmed that this practice amounts to wholesale copyright infringement.
In August 2022, the SoA was one of over twenty organisations to sign an amicus (‘friend of the court’) brief contesting Internet Archive’s unauthorised scanning and distribution of books through Open Library.
The brief was filed by our American sister organisation, the Authors Guild, in a lawsuit filed by Hachette, HarperCollins, Penguin Random House and Wiley against the Internet Archive. We thank them all for taking this action to support authors worldwide.
The brief details how Open Library harms authors and the damaging effect it will have on the markets upon which authors depend if it is not terminated. It followed our statement in July 2022 in support of the four publishers’ action.
We have complained for many years to Open Library and Internet Archive about the unauthorised scanning and distribution of SoA members’ books. Internet Archive has consistently ignored our concerns and demanded a convoluted takedown process. We have advised members on takedown requests (see below) but even when books are removed they are often returned to the Open Library.
The judgment
Internet Archive argued that ‘controlled digital lending’ falls under the US Fair Use exception. Judge John Koeltl considered the four factors of fair use, and concluded that mass scanning and distribution of copyright work was not fair use, saying:
What fair use does not allow, however, is the mass reproduction and distribution of complete copyrighted works in a way that does not transform those works and that creates directly competing substitutes for the originals.
Welcoming the judgment, SoA chief executive Nicola Solomon said, ‘This is a timely victory for authors and publishers, and a clear rebuttal of the Internet Archive’s spurious argument that its acts of piracy were legitimate or in the public interest. It sets an important precedent as actions against Internet Archive continue. It is an essential reminder of the principles of copyright protection and the rights of creators. We hope that the whole of the Open Library will now be taken down without the need for further action to protect the rights of authors worldwide.’
Are your books in the Internet Archive?
You will see from our statement that we have demanded takedown of the Open library without the need for authors to issue takedown notices. However, until that is done, if you see one of your copyright-protected works available for download from the Internet Archive’s Open Library, we recommend using the Authors Guild pro forma template takedown letter to demand its removal. You should email this to info@archive.org.
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, https://archive.org/details/nationalemergencylibrary.
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]*