The Internet Archive (IA) is a non-profit organization that preserves digital history for future generations.
The Digital Library is a staunch supporter of a free and open Internet and began carefully archiving the web twenty-five years ago.
In addition to archiving the web, IA operates a library offering an extensive collection of digital media, including books. True to the century-old library philosophy, IA patrons can also borrow books scanned and digitized in-house.
Publishers and the Internet Archive
The self-service scanning service provided by the Internet Archive (IA) does not have the same licensing agreement as other libraries. Not all publishers were happy with IA’s approach, which sparked a major legal battle two years ago.
Publishers Hachette, HarperCollins, John Wiley and Penguin Random House filed suit equating IA’s controlled digital lending (CDL) business with Piracy. Earlier this year, a federal court in New York concluded that the library was indeed responsible for copyright infringement.
The court’s decision effectively ended IA’s self-scanning library, at least banning the books from the publishers involved. However, IA was not going to give up without a fight, and the nonprofit filed opening arguments with the Second Circuit Court of Appeals in December in hopes of overturning the ruling.
high profile support
The large number of amicus briefs filed by third parties illustrate the importance of this legal battle. Previously, IA had received support from organizations such as Copyright Scholars and Authors Alliance.
Days earlier, the appeals court held another round of amicus briefs, this time in support of publishers who filed responses last week. In multiple filings, prominent figures and organizations urged the appeals court not to overturn the district court’s ruling, arguing that it would seriously harm the interests of copyright owners.
These briefings include positions from industry groups such as the MPA, RIAA, IFPI, Copyright Alliance, Writers Guild, various writers unions, and others. Legal scholars, professors and former government officials also weighed in.
RIAA, MPA, etc.
The RIAA and MPA joined the NMPA and the News Media Alliance in filing an amicus brief. The industry groups compared the impact of Napster and BitTorrent on music and movie sales to the threat IA’s self-scanning libraries pose today.
“Digital piracy causes huge financial losses to these industries, which in turn affects their ability to invest in new creative works and the artists who create them. The Internet Archive’s fair use theory poses an equally serious threat.”
Industry groups worry that allowing the Internet Archive to digitize and lend books could set a precedent for other forms of media. For example, if a service makes music, movies, or news media available to the public, these industries may face similar challenges.
They write: “Regarding the Internet Archive’s large-scale copying and distribution plans as fair use will undoubtedly encourage not only the Internet Archive itself, but also other online platforms to freely ‘lend’ all types of copyrighted material to the public in digital formats” protected works.”
“This would catastrophically damage the digital markets for creating and distributing works that the music, film and television industries, journalism and similar industries rely on profitably, thereby reducing incentives to create new works protected by copyright. The law exists to protect. “
According to amici, there is nothing fair about IA’s digital library; instead, they consider it “a clear copyright infringement.”
Copyright experts, professors and legislators
The second amicus brief was filed by more than a dozen professors and scholars in the fields of copyright and intellectual property law. They stressed that IA’s approach should not be considered a “transformative” fair use, arguing that libraries were providing “substitutes” for books legally available from publishers.
This makes the case different from current legal precedent, including the Google Books case, where Google’s extensive use of copyrighted books was deemed fair use.
“As such, IA’s exploitation of copyrighted books is diametrically opposed to acts of copying, which are considered transformative Google Books and Heidi Trust Company. IA does not provide a “utility extension” searchable database to its subscribers.What Do What is provided is access to the full text of the book as a clear competitive alternative to the version licensed by the book publisher,” the legal scholars wrote.
Another amicus brief adds more weight to the publisher’s case. They include former judges and two dozen government officials and lawmakers, including former House Judiciary Committee Chairman Lamar Smith and former House Judiciary Committee Chairman Bob Goodlatte.
The brief also rejects the Internet Archive’s fair use argument, framing the library as a threat.
“Rather than promoting the public interest, IA undermines the incentive to create and disseminate books that benefit society. Therefore, its conduct is clearly not protected by fair use,” they wrote in the brief.
Artificial Intelligence vs. Artificial Intelligence
The final amicus brief we would like to highlight comes from numerous international and regional trade groups outside the United States. These include the International Publishers Association, the International Video Federation and the Canadian Publishers Association.
These groups also reject the fair use argument. They emphasize that in addition to directly competing with publishers’ interests, IA’s libraries are also an indirect “artificial intelligence” threat, because digitized books can be used as artificial intelligence training materials.
“The Internet Archive is clearly a source of high-quality works for artificial intelligence training, as they have been professionally edited and improved by the publisher. Enter the term “Internet Archive DRM” into any search engine and many links to remove Internet Archive DRM will appear. Links to software tools for the technology and instructions on how to use the technology.
The ITO added: “Even if a U.S. court ultimately rules that AI training does not qualify as fair use, Amici is concerned that the Internet Archive’s CDL collection has been used as an AI training tool.”
All in all, the book publishers’ legal battles have received ample outside support. However, it remains to be seen whether these amicus curiae, including those supporting the IA, will influence the final outcome of the appeal.
—
The following is a summary of amicus briefs filed over the past few days, all in support of the publisher.
– RIAA, MPA, NMPA, News Media Alliance.
– Former government officials, former judges and intellectual property scholars.
– Copyright Alliance.
– Various organizations representing the interests of writers and other creatives.
– Professors and scholars of copyright and intellectual property law.
– International and regional trade bodies.