In a reply filing last week, four major publishers further detailed their claims that the Internet Archive’s long-running program to scan and lend physical library books is blatant copyright infringement that “ignores established law and undisputed facts.” And in a reply filing of their own, lawyers for the Internet Archive further insisted that the publishers are improperly conflating the market for licensed e-book lending with the IA’s efforts to facilitate traditional library lending.

The briefs come after the parties filed dueling motions for summary judgment on July 7, and more than two years after the publishers (Hachette, HarperCollins, Wiley, and Penguin Random House, organized by the Association of American Publishers) first filed its copyright infringement lawsuit in the Southern District of New York, alleging that the Internet Archive's controversial program to scan and lend books under an untested legal theory known as "controlled digital lending" is a massive piracy operation "masquerading as a not-for-profit library."

In their 41-page reply to the IA’s motion for summary judgment, filed on September 2, lawyers for the publishers attack the Internet Archive’s claims that its scanning and lending of physical library books is merely an extension of traditional library lending, contending that that argument ignores clearly established law—most recently a high profile decision in Capitol Records vs. ReDigi, in which the federal courts forcefully rejected an upstart program to expand the doctrine of first sale (also known as exhaustion) to create a resale market for digital music files.

“IA argues that CDL ‘is fundamentally the same as traditional library lending’ and should be treated as a fair use since it ‘furthers the ends of copyright’s exhaustion doctrine,’” the publisher’s brief states. “This position is a study in blind denial that ignores established law and undisputed facts. Perhaps most astonishing, IA essentially disregards ReDigi, in which the Second Circuit held that (1) unauthorized reproduction is ‘not protected by [First Sale]’"; (2) the fair use doctrine cannot be used to expand the statutory scope of [first sale]; and (3) ReDigi’s actions were unlawful even though it used technology to avoid increasing the number of music files in circulation, a practice akin to CDL’s central principle.”

Under CDL, the Internet Archive and other libraries make and lend out digital scans of physical books in their collection under rules that mimic traditional lending: only one person can borrow a scanned copy at a time; the scans are DRM-protected; and the corresponding print book the scan is derived from is taken out of circulation while the scan is on loan to maintain a one-to-one "own-to-loan" basis.

But not only is CDL a fatally flawed, invented legal theory, the publishers argue, the IA doesn’t even follow the rules of CDL. In addition to the removal of the one copy/one user restriction during the pandemic for its controversial National Emergency Library initiative in 2020 (which is also at issue in the suit), the publishers point out that the IA cannot even ensure the enforcement of CDL rules on day-to-day basis. “Far from verifying whether Partner Libraries have taken physical copies out of circulation, IA even concedes its awareness that certain Partner Libraries do not remove the physical books from their shelves,” the brief states. “The upshot is that IA cannot ensure it abides by its own generous conception of the owned-to-loaned principle.”

The central problem with the IA’s fair use defense is that there is absolutely nothing transformative about simply ‘repackaging [and] republishing' the full text of the Publishers’ books in unauthorized digital formats and disseminating them worldwide.

Lawyers for the publishers also take apart that the IA’s fair use argument.

“The central problem with IA’s fair use defense is that there is absolutely nothing transformative about simply ‘repackag[ing] [and] republish[ing]” the full text of the Publishers’ books in unauthorized digital formats and disseminating them worldwide,” the brief states, arguing that the “Publishers have already lost out on millions of dollars in lost fees from IA,” and that losses that would surely grow if the IA is allowed to expand its operations and other similar operations, emboldened by the courts, sprout up.

To that end, the publishers also press their claim that the IA cannot escape a damage award in this case. IA lawyers have argued that they have acted in good faith is designing their CDL program, and under the copyright law damages can be escaped if the court believes the infringing party has acted in good faith.

But the publishers argue that IA officials have had plenty of warning that their program is likely illegal—and yet they have accelerated their expansion since the suit was filed. Furthermore, the publishers say the organization is downplaying “the commercial aspects of IA’s business,” insisting that despite its nonprofit status the IA is not a real statutorily defined library. “IA is an organization systematically republishing millions of unauthorized, in-copyright e-books, and loaning them out 25 million times a year to the general public,” the brief states.

“Ultimately, IA’s motion amounts to a policy argument that seeks to undercut the Copyright Act and Congressional policymakers, as well as reverse controlling precedent,” the publishers conclude, insisting that congress is the proper forum to address the future of digital library lending, not the courts.

The IA’s Response

In their reply to the publishers’ motion for summary judgment, IA lawyers insist that their scanning and lending program is legal, and characterize the publishers’ case as an attack on the fundamental work of libraries.

“Plaintiffs assume that such a project must harm their efforts to license e-books—but they do not show it,” IA lawyers argue. “Indeed, their conflation of licensed e-books with scanned copies of physical books exposes the real goal of this lawsuit: Plaintiffs would like to force libraries and their patrons into a world in which books can only be accessed, never owned, and in which availability is subject to the rightsholders’ whim.”

IA lawyers concede that e-book licensing is “an excellent additional option” for libraries. “But it should not be the only option,” the brief states. “Copyright law was never intended to be a means to permanently lock up culture or force libraries and readers to depend on the licensing choices of a few publishing behemoths.”

In their 41-page brief, IA lawyers argue that its program does not compete with the market for licensed e-book access, but is in fact a program to make the physical books on library shelves more accessible. In other words, the IA program is not creating competing editions of actual e-books to lend (it is not creating e-books at all, IA lawyers suggest), but using technology to extend the accessibility of the physical books already legally owned by libraries.

“Plaintiffs argue that Internet Archive harms the market for or value of their books because the Internet Archive does not pay the ‘customary price’ for the activities it undertakes. But as discussed in Internet Archive’s Opening Brief, the customary price payable to a publisher to lend a book a library has already purchased is zero,” IA lawyers state. “To the extent Plaintiffs experience economic harm from digital lending, it is exactly the same source of economic harm they would experience from physical lending: the possibility that some consumers take books out from the library instead of buying them.”

The brief goes on to take aim at the concept that publishers have pushed from the beginning of library e-book lending: that “friction” in physical book lending is a well-considered feature, rather than a bug, in the reading ecosystem.

“Copyright law does not grant publishers the right to limit libraries only to inefficient lending methods, in hopes that those inefficiencies will lead frustrated library patrons to buy their own copies. The fundamental limit, which digital lending does not disturb, is that libraries can only lend as many copies as they own,” IA lawyers argue. “To be sure, publishers would prefer—and might profit from—a world in which they had complete control over library lending and could charge libraries for each additional circulation of a book the library already bought. But their preferences do not tell us anything about the scope of their rights under copyright law.”

IA lawyers say services like OverDrive—which “rent” high quality licensed e-books rather than scanned copies of paper books owned by libraries—should not affect the market analysis at issue in this case. IA lawyers say the case law has established that books can be scanned and used in ways that accord with copyright law, and that lending books is a legal, important use.

“Libraries may offer access to books via OverDrive instead of or in addition to lending books they have purchased, and that is a perfectly reasonable choice for libraries to make,” the brief states. “But digitally lending books the library bought does not displace OverDrive revenue; they are different things, and the publishers, having chosen to sell books to libraries, should not be able to double-dip.”

The next and final round of reply briefs are due on October 7, after which the court will set a hearing date for the dueling motions for summary judgment.