Lawyers for four plaintiff publishers this week filed a blistering response to the Internet Archive’s demand for a decade’s worth of the plaintiff publishers’ monthly sales data to use in its defense against charges of copyright infringement.
“In short, it is impossible to calculate the market harm of IA’s infringement based on the crude comparison IA proposes,” attorneys for the four publishers insist, adding that the IA’s “massive” demand “rests on no coherent foundation” and should be denied.
The filing comes after lawyers for the Internet Archive this week told the court it wanted monthly sales data for all the books in print from the four publishers dating back to 2011, in an attempt to show that it’s controversial program to scan and lend books has not had a negative impact on the market for the publishers’ books, a key component of its fair use defense.
But the plaintiffs counter that providing such data, which would involve “more than 500,000 titles” and an "enormous reservoir of highly proprietary data," would be costly, time-consuming, "burdensome in the extreme" and legally "irrelevant." Further, lawyers said the IA's contention that providing the data would not be burdensome was "preposterous."
“The demand seeks access to data in a manner that lies far outside the bounds of how data is accessed, amassed, or referenced by the Plaintiff publishers in the ordinary course of business and would involve incalculable employee time and significant resources,” the filing states, adding that IA offers no precedent where a similar, sweeping demand was allowed.
Lawyers state that "an analyst for one Plaintiff estimated that it would take his entire team several weeks or months working full time to compile the requested information" which would amount to "hundreds of millions, if not billions" of rows of data.
In addition, "since books are not fungible widgets" the entire request "rests on a false premise," the publishers argue.
"There is no such thing as a ‘comparable book’—even if ‘comparable’ is defined as some undefined period of sales data. Should Catcher in the Rye have similar sales to a bestselling cookbook, no one could plausibly contend the two works were ‘comparable.’ Moreover, sales vary dramatically over different periods of time, depending on countless events (e.g., an author dies; the book is made into a movie; it receives a great review or is selected by a state for its curriculum). No control group can begin to equate sales data.”
The brief also attacks the value of the data, insisting that sales figures will not sway the fourth factor of the fair use test in the IA’s favor.
“The fourth factor looks beyond lost sales and focuses instead on ‘the effect of the [infringing use] upon the potential market for or value of the copyrighted work,” the publisher brief states. “Here, IA self-evidently harms Plaintiffs’ existing markets by refusing to pay the customary fees that aggregators pay to distribute the same e-books to library borrowers. The market harm compounds as others engage in the activity, destroying the vibrant market for licensed library e-book lending that currently exists. None of the requested data, or so-called ‘comparables,’ is necessary to or even related to this category of market harm. Nor is the demanded sales data necessary to demonstrate potential market harm by showing that the ‘secondary use competes in the rightsholder’s market as an effective substitute for the original.”
The copyright infringement lawsuit was first filed on June 1, 2020, in the Southern District of New York, and is being coordinated by the Association of American Publishers.
Lawyers for the Internet Archive counter that their decade-old program is "sheltered by the fair use doctrine" and is designed to operate like a traditional library, guided by an untested theory called controlled digital lending (CDL). Under CDL the IA and its partner libraries scan legally acquired print books and make the scan available for lending in lieu of the print under rules designed to mimic traditional library lending: only one user can borrow a scan at a time; the scans are DRM-protected against copying and to enforce limited lend periods; and the scan and the corresponding print book from which the scan is derived are not allowed to circulate at the same time in order to maintain "a one-to-one owned-to-loan" basis.
The plaintiff publishers allege that the program is akin to a massive, "industrial" piracy operation.
"IA operates an illegal e-book distribution service that threatens to destroy the legal library e-book market and otherwise harm consumer book sales if left unchecked," the publisher's brief states. "IA accumulates millions of hard copies of copyrighted books as cheaply as possible, scans them, and distributes digital scans of the entire book without a license to anyone in the world who signs up to IA’s website."
At press time, a date has not been set for a hearing.