With a final round of briefs filed last week, a federal judge is now ready to hear arguments for summary judgment in a closely watched copyright case filed by four major publishers against the Internet Archives over its program to scan and lend library books.

In a final round of briefs filed on October 7, attorneys for the publishers say the “undisputed facts and settled law” lead to the “inexorable conclusion” that IA’s scanning and lending of library books is copyright infringement on a massive scale. But attorneys for the Internet Archive insist their program is legal and that “no reasonable jury” could conclude that the IA’s controlled scanning and lending of library books harms the publishers’ market.

The briefs come after the parties filed dueling motions for summary judgment on July 7; reply briefs on September 2; and more than two years after four major publishers (Hachette, HarperCollins, Wiley, and Penguin Random House) organized by the Association of American Publishers, first filed its copyright infringement lawsuit alleging that the Internet Archive's controversial program to scan and lend books under an untested legal theory known as "controlled digital lending" is little more than a massive piracy operation "masquerading as a not-for-profit library."

In their third and final reply brief, attorneys for the publishers reiterate their position that, on both the facts and the law, there is no viable fair use defense for the IA’s scanning and lending program, labeling the Internet Archive a "commercial" actor and CDL “a cynical branding exercise designed to repackage industrial-scale copyright infringement as a legitimate enterprise.”

Furthermore, the publishers dismiss the IA’s contention that CDL guards against publishers choosing not to make digital books available to libraries as a “delusion” and credits the publishers with “pioneering” a “thriving” licensed access library e-book market for just such a purpose, to make digital books available to libraries.

“In the end, Internet Archive asks this Court to adopt a radical proposition that would turn copyright law upside down by allowing IA to convert millions of physical books into e-book formats and distribute them worldwide without paying rights holders,” the publisher brief states. “Since the purpose of copyright is to incentivize the creation of new works, authors and publishers—not IA—hold the exclusive right to publish their books in all formats and distribute them via select channels.”

In their brief, Internet Archive lawyers reiterate their arguments that their scanning and lending program is fair use—and that the evidence will show no harm to the publishers market.

“All CDL does, and all it can ever do, is offer a limited, digital alternative to physically handing a book to a patron. Libraries deciding how to meet their patrons’ needs for digital access to books are not making a choice between paying e-book licensing fees or getting books for free. Libraries pay publishers under either approach,” the IA brief states. But with CDL as an option, “librarians can continue to maintain permanent collections of books, to preserve those books in their original form for future generations, and to lend them to patrons one at time, as they have always done,” the brief adds, meaning that “librarians can continue to advance the ultimate purpose of copyright: ‘the intellectual enrichment of the public.’”

In the end, Internet Archive asks this Court to adopt a radical proposition that would turn copyright law upside down...

And in a twist, the IA brief concludes by citing two recent headlines. First up, a controversial decision by Wiley—one of the plaintiffs in the case—to pull digital library access to its textbooks just before the start of the academic year.

“When they returned to campus this fall, students at Georgetown, George Washington University, and the other members of the Washington Research Library Consortium found 1,379 books published by Plaintiff Wiley could no longer be borrowed in electronic form from those institutions’ libraries,” IA lawyers told the court. “They disappeared from those libraries’ virtual shelves because Wiley decided to stop licensing them to the academic library market as of August 31, 2022. And according to Plaintiffs’ theory in this case, that means libraries could not loan them out digitally at all.”

The brief notes that Wiley restored the titles for the academic year after a public backlash. “But the message was sent,” IA lawyers state. “The ability of libraries to serve their patrons is subject to publishers’ whims.”

And tapping another recent headline, IA lawyers quoted a recent open letter organized by digital advocates Fight for the Future and signed by more than 400 authors that expressed fear of a world in which “libraries are reduced to a sort of Netflix or Spotify for books.”

“That is what this case is about,” IA lawyers conclude. “Whether the selection of books available from libraries digitally will be chosen by librarians, or instead determined by publishers’ unilateral and unreviewable licensing choices. This Court is being asked to decide whether copyright law gives publishers the power to dictate which books in a library’s collection can and cannot be loaned digitally.”

Although there could still be more filings and issues, the cross-motions for summary judgment are now fully briefed. Next up, a hearing before presiding Judge John G. Koeltl, the date for which at press time is still to be set. If neither side prevails at the summary judgment stage the case would then head to a trial.

The contentious copyright case has engaged a wide range of stakeholders, with amicus briefs filed on both sides.

In a recent PW interview, AAP president and CEO Maria Pallante called CDL "a baseless justification for infringement" that "was cobbled together by a small group of individuals with close ties to the Internet Archive." Pallante accused the Internet Archive and the upstart library advocacy group Library Futures of aiming "a series of torpedoes at the Copyright Act."

In a recent PW soapbox, Library Futures chair Kyle Courtney responded by defending CDL. "These are the books that sit on our libraries’ shelves or in our off-site repositories. They were all purchased by a library or otherwise legally acquired, and the authors were all paid in accordance with their publishing contracts. Furthermore, this is what libraries do: amass and preserve collections that serve an important, fundamental purpose in society long recognized and valued by the public, courts, Congress, as well as by publishers and authors."