Tag: Hachette et al. v. Internet Archive

Why Internet Archive is in Legal Trouble and Deserves to Be

My last post about the case Hachette et al., v. Internet Archive was angry. Moved by the compelling testimony author Sandra Cisneros wrote to the court, I was and remain pissed off at those who justify what amounts to enterprise-scale book piracy by dressing it up in the rhetoric of progressive lingo and academic theory. Many amicus briefs, authored by familiar names in anti-copyright academia, have been filed in support of Internet Archive.  I could pore over every one of those documents, but the only reason to do so is my admittedly morbid and nerdy fascination with the way each author will try to argue that what IA is doing is already exempted by the Copyright Act. But I ain’t got that kinda time. And it ain’t necessary. Because it ain’t so.

The reason I opined in my last post that this case should be short work for the court is that IA’s arguments boil down to two defenses, both of which should be overwhelmed by the facts and relevant case law. Defense Number One is that the IA lending model called “Controlled Digital Lending” (CDL), a model of its own invention, falls within the exceptions already carved out for libraries by statute. And Defense Number Two is, of course, that the CDL model is fair use, beginning with the claim that it is “transformative” under factor one of the analysis.

CDL: It Ain’t on the Page

Regarding the first defense, the CDL theory may sound reasonable on the surface. A library buys or legally obtains a print copy of a book and scans it to make a digital copy (its own ebook). Then, in principle, the library loans the digital copy to one patron at a time and does not loan more digital copies than it has physical copies in its collection. Additionally, the CDL model asserts that the library should not loan physical and digital copies at the same time.

But IA’s difficulty in defending CDL is twofold. First, there is nothing in the copyright statute that allows the practice; and second, it appears that IA does not even adhere to the boundaries of CDL, if it were allowed. Remember that what triggered this lawsuit was IA’s “National Emergency Library,” when it released over one million titles without restriction, using the pandemic as a rationale for doing so.

IA and its amici will take circuitous paths through Sections 108 and 109 and try to stitch together a rationale for a lending regime that was never anticipated by these sections in the law. In the first part (§108), carve outs for libraries specifically exempt limited conduct like preservation, inter-library loan, certain research activities, etc. But nowhere do any of the exceptions even imply that a library may produce and distribute its own trade-pub ebooks for the sole purpose of bypassing the licensing models under which ebooks are currently loaned. Even more damning is the fact that Internet Archive is not a library under the terms of the statute and, the court may find that it does not even qualify for §108 exceptions, let alone that those exceptions encompass CDL.

As for Section 109, IA and its amici will try to argue that because the original, legal purchase of a physical copy extinguishes the rightsholder’s interest in that copy under the “first sale” doctrine, this somehow extinguishes the copyright rights prohibiting the reproduction and distribution of a digital book made from the same physical copy. This is fantasy. Pull a book off your shelf, scan it, and make it available to the public, and you will violate the reproduction right, the derivative works right, and the distribution right of the copyright owner. That IA is engaged in precisely this activity at scale is normally described as enterprise piracy, not library lending.

But even if CDL were permissible by law, the allegations in the publishers’ motion for summary judgment (MSJ) about IA’s operations suggest that the organization is not even complying with the “controlled” part of the regime. The publishers MSJ avers …

Ironically, the many thousands of hard copy books IA obtains from defunct colleges or libraries will likely end up in “archive facilities in Richmond, CA,” which consist of large shipping containers owned by IA. Once locked away, upon information and belief, IA will make no effort to make the print books available to be read, like books in actual library collections. Instead, the print copies primarily exist to rationalize, or provide the predicate for, IA’s argument that there is a one-to-one correlation between print copies legitimately owned and their illegitimate ebook scanned copies.

So, is there any “control” proving that containers filled with books serve as the foundation for IA’s proper accounting of its digital lending? Even more bizarre is that IA allegedly asserts that its “ownership” of print books includes books on the shelves of “partner libraries.” Again, from the MSJ…

With respect to the Website’s titles for which the corresponding print books are allegedly stored at partner libraries, it defies reason that the partner libraries will have the wherewithal to faithfully and consistently remove a book from circulation each time it is borrowed on the Website, and put it back on the shelf when the Website version is checked back in.

You see where that’s going, right? If IA “partners” with enough libraries, it would then justify mass distribution of the ebooks it makes and, apparently, without any control whatsoever. So, even if a court held that the CDL concept falls within the exceptions in the Copyright Act (and this is highly unlikely), these are just two of the facts presented in the publishers’ MSJ indicating that IA is not in compliance with its own theoretical practice. And, naturally, the implications do not stop with books. After Brewster Kahle’s “New Library of Alexandria” swallows the entire commercial market for ebooks, music, motion pictures, video games, etc. would quickly follow. So, assuming the argument that “CDL is legal” winds up skidding hard against the language and intent of the statutes, let’s talk fair use.

Stop Me if You’ve Heard This One

Internet Archive alleges that its conduct is fair use, which is amusing and should easily be denied based on more than one precedent in the same circuit. I say amusing because Internet Archive’s mission is a crusade predicated on the devout certainty that this part of its operation is permitted within the statutory exceptions for libraries. But just in case that argument fails, IA will plead fair use. I mean, yeah. It would be bad lawyering if they didn’t. But it’s still funny.

In the simplest analysis, IA’s conduct exceeds the boundaries established by the Second Circuit in Google Books and which was reaffirmed in ReDigi and TVEyes. The Google Books opinion begins with the statement, “This copyright dispute tests the boundaries of fair use.” And that was Judge Leval, who wrote the paper introducing the doctrine of “transformativeness” to the fair use analysis. There, the Google Books search engine, which necessitated digitizing millions of books, was held to be “transformative” under factor one of the analysis because it “added new utility” (i.e., a research tool the world did not have). But essential to that holding was the fact that Google Books does not make whole, in-copyright books available to the public. As the opinion states …

With respect to the first factor test, it favors a finding of fair use (unless the value of its transformative purpose is overcome by its providing text in a manner that offers a competing substitute for Plaintiffs’ books …

That “competing substitute” language is fatal to IA’s argument that it is “transformative” under the same “new utility” doctrine. In fact, because IA clearly provides a substitute for licensed ebooks, it cannot reasonably argue that it provides a new utility at all. It simply provides unlicensed digital books in lieu of licensed digital books. Indeed, enterprises more innovative than IA (e.g., TVEyes) have tried to argue “transformativeness” under the Google Books utility doctrine, and they have failed by the light of the same market substitute boundary.

When your only innovation is giving away for free that which the copyright owner intends to sell, there is nothing fair use offers as a defense. In the fair use analysis, there is always a strong interplay between factor one (purpose of the use) and factor four (potential market harm), but here the questions are almost identical because IA’s purpose is nothing more than market substitution.

So, Internet Archive will continue to make noise on Twitter and elsewhere. It will continue to portray itself the underdog, standing in the shoes of all librarians against the juggernaut of the publishing industry. And it will continue to elide or distort the authors’ interest in the narrative. But as a legal matter, for the reasons stated, I think IA should lose, and lose big. And that will be just fine for real libraries because real libraries do not engage in the conduct alleged in this case. And that will be the subject of a future post.

Photo source by: Janpietruszka

Publishers’ Suit Against Internet Archive is Pro-Author, Not Anti-Library

“The raggedy state of my books that some readers and educators hand me to sign is the best compliment of all.” – Sandra Cisneros –

The matter of Hachette et al. v. Internet Archive should be short work for a court in the Second Circuit (or any circuit). The allegations about IA imply an operation that is barely distinguishable from other mass-piracy enterprises. which have sent their owners to jail. The motion for summary judgment (MSJ), filed by the publishers on July 7, is a catalog of statements of undisputed material facts (SUMF), a fraction of which should obliterate IA’s claims that it operates within the most elastic reading of the copyright law.

In a follow-up post, I’ll discuss the legal questions presented and why I believe more firmly now than I did two years ago that IA will lose on every point in this case. But for the moment, I’m calling bullshit on the big theme IA tries to sell in the court of public opinion—namely, its claim to be just another library “doing what libraries do” and that it is, therefore, a target of a voracious publishing industry and a proxy for the interests of all libraries.

Without getting into the weeds, IA’s conduct is highly distinct from ordinary libraries for three key reasons: 1) its founder Brewster Kahle has repeatedly stated his agenda to obviate copyright law and make “every book in the world” available online for free; 2) IA engages in a scanning-to-ebook scheme that circumvents ordinary library licensing under its own theory called Controlled Digital Lending (CDL); and 3) even if CDL were well founded in copyright law, IA does not adhere to its own invented restrictions set forth by the regime.

So the contention that IA functions like any other library is untrue, as the aforementioned catalog of material facts makes clear, and offensive, as author Sandra Cisneros makes clear in her declaration to the court, also filed on July 7. “Real libraries,” she writes, “do not do what Internet Archive does. The libraries that raised me paid for their books, they never stole them.” Simple and to the point. But Cisneros’s testimony in this matter contains multitudes.

Many authors will recognize their own personal battles with both craft and purpose when they read Cisneros divulge, “About three years after The House on Mango Street was published, when I was 33 years old, I found myself unable to pay the rent and considered killing myself because it was so painful to feel like I was of no value to society, even though I knew I was a gifted writer.” That’s more than an economic statement. It is existential in every sense. And countless artists have been there in one way or another.

So, to the snarky bros of tech utopia, the self-righteous wonks at EFF, the privileged dilettantes of anti-copyright academia, Cory Doctorow, and most especially Brewster Kahle, you are all invited, with prejudice, to go fuck yourselves. Because what, one might ask, was Cisneros’s solution to transforming the growing popularity of her work into a measure of financial sustainability for herself? Naturally, it was copyright law.

“…my agent of the last thirty-five years, Susan Bergholz, approached me at this time and helped me to enforce my rights as an author,” writes Cisneros, stating that she initially asserted her rights among some smaller publishers but notably not with Penguin/Random House—a relationship she describes as integral to sustaining her as an author.

This lawsuit is not about a billion-dollar industry seeking to hinder the lawful conduct of a real library. It is about a multimillionaire ideologue hijacking the author’s livelihood for his own commercial gain, and because he believes he knows best how the world should work. We have enough ideologues robbing individuals of their agency these days. Why is a tech baron seeking to rob book authors of their rights any better?

“It was like I had gone to a pawn shop and seen my stolen possessions on sale,” Cisneros tells the court about visiting the IA  platform and seeing her work distributed for free and without license. She also notes that she has personally given away many copies of her books to readers who, like her own childhood family, cannot afford to buy books.

Cisneros’s testimony is compelling because IA’s defenses cannot breathe in law, but only in PR, where cute graphics and grabby headlines falsely portray it as a Robin Hood taking on industry. And lest we forget, her voice is not alone. When this litigation was triggered in 2020 by IA’s so-called National Emergency Library, citing the pandemic as an excuse to distribute 1.4 million unlicensed titles, authors Colson Whitehead, Alexander Chee, and others sharply criticized the move. “The Internet Archive’s ‘emergency’ copyrights grab endangers many already in terrible danger,” Chee tweeted at the time.

More authors should continue to call out IA for its conduct—if not for themselves, then for the next generation of writers. “The ability of copyright law to incentivize the creation of new works will be profoundly undermined if Internet Archive devalues books further by continuing its mission to put bootleg copies of every book it can acquire on the Website,” the publishers’ motion argues.

It is a simple rule of economics that you cannot eliminate fair trade in distribution without destroying the incentive to produce—except perhaps as an eccentric hobby. “Aided by its industrial scanning apparatus and book pipeline, IA can realistically achieve its goal of offering 80% of all books currently residing in libraries within the decade,” the publishers’ motion states. If that ambition were realized, one ironic result could be shuttering real libraries around the country because an operation like IA would render those institutions obsolete.

But the more devastating and certain effect would be to kill many prospective writing careers in their fragile beginnings, a period Cisneros describes as discovering her voice when she found the child narrator for The House on Mango Street. She says, “Best of all, writing in a younger voice allowed me to name that thing without a name—that shame of being poor, of being female, of being not quite good enough, and examine where it had come from and why, so I could exchange shame for celebration.”

That’s the author Brewster and his swarm of elitist amici want to deny both income and the right to make her own choices about her work. As she writes in a latter chapter in Mango Street, “People who live on hills sleep so close to the stars they forget those of us who live too much on Earth.”

Note: Some quotes by Cisneros are transcribed from the introduction to the audiobook version of The House on Mango Street, and my punctuation may not match hers.

NOTE: Originally published that Neil Gaiman criticized the NEL, as reported by NPR. Gaiman later tweeted that the article misrepresented his views.