In Feature Articles by Porter Anderson
Plaintiffs Hachette, HarperCollins, Wiley, and PRH joined the Association of American Publishers in seeing the court dismantle ‘controlled digital lending.’
The Association of American Publishers’ president and CEO Maria A. Pallante, center, at the International Publishers Association’s Guadalajara international congress today, December 4. From left are Anne Bergman, director of the Federation of European Publishers; Maria Strong, US Copyright Office; Pallante; Iban Garcia del Blanco, former European Parliament Member from Spain; and Jessica Sänger, the Börsenverein’s director for european and international affairs, and chair of the IPA’s copyright committee. Image: AAP
By Porter Anderson, Editor-in-Chief | @Porter_Anderson
The moment signifies a hard-won victory for publishing, and it comes at a propitious moment for the AAP team, key members of the staff of which are in Mexico. There, the AAP is a partner to CANIEM, the Mexican publishers’ organization, in producing for this week’s International Publishers’ Association (IPA) and thus providing more than 200 publishing-delegates with whom to share the news.
Here in Guadalajara, Maria A. Pallante—AAP’s president and CEO—has spoken on behalf of AAP’s board of directors, saying, “After five years of litigation, we’re thrilled to see this important case rest with the decisive opinion of the Second Circuit, which leaves no room for arguments that ‘controlled digital lending’ is anything more than infringement, whether performed by commercial or noncommercial actors, or aimed at authorship that is creative or factual in nature.
“As the court recognized, the public interest—and the progress of art and science that is the mandate of the Constitution’s copyright clause—is served best when authors and their publisher-licensees can decide the terms on which they make their works available.
“We are indebted to Hachette, HarperCollins, Penguin Random House, Wiley, their authors, and the many amici in this case who stood up for copyright, without which we would be a less inspired and less informed society.”
The primary focus of the case was the Internet Archive’s “Open Library,” an unlicensed, global distribution platform.
After scanning millions of print books—digital files that the court easily found constituted market-substitute ebooks—the Internet Archive proceeded to “lend” the copies worldwide without any consent or payment to authors or publishers.
It sought to justify its end-run around the publishers’ markets, including their substantial ebook markets with US public libraries, by presenting a radical theory: that the Internet Archive or its partner libraries could make and distribute unlicensed digital copies if they retained a print copy of the book for each digital “borrow.”
“Moreover,” the AAP’s media messaging says today, “the Internet Archive loudly encouraged thousands of libraries to stop licensing ebooks and instead use its platform.
“The court fully grasped the slippery slope and catastrophic impact of such conduct if other actors were to adopt Internet Archive’s conduct.
The International Publishers Association, seated this week at its Guadalajara congress, is one of the organizations which had filed briefs in support of the publishers, along with multiple legal experts and creator organizations—including briefs led by the Authors Guild and former Members of Congress.
Many of these made the point that the Internet Archive cannot rewrite to its own advantage the laws that the US Congress alone has power to enact.
The amici also argued that there’s an existential danger from the Internet Archive’s efforts to assemble an unlawful digital collection in which millions of literary works and other creative content are now vulnerable to piracy, including by artificial intelligence developers.
“Unsurprisingly,” the AAP writes today, “the court concluded that the Internet Archive’s theory of ‘controlled digital lending’ lacks any legal authority; harms authors (who have the right to set the terms for each format of a work); and usurps the value of publishers’ markets in contravention of the Copyright Act.
“’If authors and creators knew that their original works could be copied and disseminated for free, there would be little motivation to produce new works,’ the Court said. ‘And a dearth of creativity would undoubtedly negatively impact the public.”
The court concluded that digitizing physical copies of written work is not “transformative” (the legal requirement), because it merely “transforms” the material object embodying the expression, not the expression itself.
“The Copyright Act protects authors’ works in whatever format they are produced,” the court said.
Nor is an infringer free to mask or nullify its infringement—for example by asserting an “owned-to-loaned” ratio of physical to digital copies—the court underscored.
A minor part of the case was the Internet Archive’s self-branded “National Emergency Library (NEL),” with which the district court dispensed in one sentence.
As the AAP puts it today, “with this case concluded, publishers have achieved a decisive and broadly applicable victory for authors’ rights and digital markets, an outcome that was our foremost, principled objective.
“In addition, the Internet Archive is bound by a sweeping permanent injunction and must make a payment to AAP, which funded the action, the amount of which is confidential under the terms of a court-approved, negotiated consent judgment between plaintiffs and Internet Archive.
“We are, however, permitted to disclose that ‘AAP’s significant attorney’s fees and costs incurred in the action since 2020’ will be ‘substantially compensated.’”
The publishers and AAP were represented in this case by the law firms of Davis Wright Tremaine and Oppenheim + Zebrak. Thes second circuit opinion is available here. AAP, in seeing its efforts on the Internet Archive case conclude today in this way is following several successfully fought censorship battles in the United States.
More from Publishing Perspectives on copyright is here, more on ‘controlled digital lending’ is here, more on the Internet Archive is here, more on the Association of American Publishers is here, and more on the International Publishers Association is here.
See also:
Publishing Perspectives is the International Publishers Association’s world media partner.
Porter Anderson has been named International Trade Press Journalist of the Year in London Book Fair’s International Excellence Awards. He is Editor-in-Chief of Publishing Perspectives. He formerly was Associate Editor for The FutureBook at London’s The Bookseller. Anderson was for more than a decade a senior producer and anchor with CNN.com, CNN International, and CNN USA. As an arts critic (Fellow, National Critics Institute), he was with The Village Voice, the Dallas Times Herald, and the Tampa Tribune, now the Tampa Bay Times. He co-founded The Hot Sheet, a newsletter for authors, which now is owned and operated by Jane Friedman.
Tags: Association of American Publishers, CANIEM, Copyright, Hachette Book Group, HarperCollins, International Publishers Association, International Publishers Congress, Internet Archive, John Wiley, Maria A. Pallante, Mexico, Penguin Random House, United States
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