At the beginning of June, four publishing companies filed a lawsuit in the United States District Court for the Southern District of New York against the Internet Archive alleging direct and secondary copyright infringement. Specifically, the four publishing companies, including HarperCollins, Hachette Book Group, John Wiley & Sons, and Penguin Random House, allege Internet Archive’s “Open Library” and/or “National Emergency Library” infringes their respective copyrights.
Plaintiffs are four of the world’s preeminent publishing houses and collectively, they publish some of the most successful and leading authors in the world. Indeed, many of these authors are winners of the Pulitzer Prize, National Book Award, Newbery Medal, Man Booker Prize, Caldecott Medal and Nobel Prize. Plaintiffs are the copyright owners of each of the works upon which the lawsuit is based.
Founded in 1996, the Internet Archive is a non-profit digital library offering free universal access to books, movies, and music. Via its “Open Library,” Internet Archive distributes digitally scanned copies of over one million titles. Any Internet-connected user has the ability to access complete digital copies of copyrighted books in this manner. Moreover, Internet Archive has openly pledged to do the same for millions more. In March, at the outset of the global pandemic, Internet Archive created the “National Emergency Library” with a goal to render all scanned books immediately accessible to anyone with an account.
The plaintiff publishing companies allege the Internet Archive has engaged in willful copyright infringement by scanning print books, uploading these “illegally scanned books” to its servers, and distributing whole digital copies of the books to the public. Plaintiffs further allege the defendant has done so without any license or payment to the publishing companies or authors. Because these e-books are scanned from physical copies rather than purchased in their digital form, the project circumvents the typical licensing restrictions used by conventional libraries. As a result, plaintiffs argue the Internet Archive is conflating print books and e-books.
Under the United States Copyright Act, copyright owners have six exclusive rights, including reproduction, preparation of derivative works, distribution, public performance, public display, and digital public performance of sound recordings. The right to distribute copies of copyrighted works to the public includes offering copies for sale, lease, or auction. Direct copyright infringement occurs when a person, without authorization, reproduces, distributes, displays, or performs a copyrighted work, or prepares a derivative work based on a copyrighted work. On the other hand, secondary copyright infringement occurs when a third party enables or supports infringement, as Internet Archive has allegedly done in this matter.
The first sale doctrine provides a defense to copyright infringement. Under the first sale doctrine, this distribution right is extinguished when a copyright owner transfers ownership of a particular legal copy of a work to another person. To succeed on this defense, the accused party must prove that he lawfully owned the copy that was later distributed. This doctrine is premised on the user’s right to dispose of his or her particular copy of a copyrighted work but does not necessarily extend to a situation in which the user has made another copy or otherwise converted the work to another form.
To avoid problems related to unauthorized reproduction of electronic books, many publishers use Digital Rights Management (DRM), which broadly refers to any technological measure that limits the use of copyrighted electronic media. One basic example of DRM is copy protection, which limits a user’s ability to copy, transfer, or otherwise duplicate protected data files. As another example, DRM may restrict copies of a particular electronic file to reside on a limited number of devices simultaneously. However, DRM can be used to enforce virtually any limitation a copyright owner desires. Of course, circumvention of DRM is prohibited under United States copyright law, and the Digital Millennium Copyright Act (DMCA), in particular.
In this case, DRM is not at issue because the libraries never held digital rights to the copyrighted works. Instead, the libraries rightfully owned physical copies of the books at issue and scanned their copies to create a digital form. Indeed, in response to this lawsuit, the Internet Archive claims that it is merely acquiring books and lending them as libraries have always done. The Internet Archive further rationalizes that because schools and libraries remain temporarily closed, due to the ongoing pandemic, creating electronically accessible versions of these titles is the most reasonable option for continuing to lend books. However, Internet Archive has yet to formally respond to this lawsuit and has until the end of the month to do so.