After more than three years of litigation, it took judge John G. Koeltl just hours to sign off on the parties’ negotiated consent judgment—but not without a final twist. In a short written opinion made public yesterday, Koeltl sided with the Internet Archive in a final dispute, limiting the scope of the permanent injunction to cover only the plaintiffs’ print books that also have electronic editions available.
In a letter to the court, lawyers for the plaintiff publishers had argued that the injunction should cover all the plaintiffs' commercially available books, whether the books have digital editions or not. “The law is clear that the right to decide whether or not to publish a book in electronic format belongs to its authors and publishers, not IA,” the publishers’ letter argued. Furthermore, IA’s unauthorized digital editions create “clear potential market harm to the print book market,” the publisher letter claims, because a “straight, verbatim digital copy of the entire work is an obvious competing substitute for the original.”
In their letter to the court, IA attorneys argued that the injunction should be limited to the plaintiffs' books that have digital editions available because that was what the suit addressed. “Because the parties did not have the opportunity in this case to litigate the degree to which the unavailability of digital library licensing would affect the fair use analysis, it is inappropriate for an injunction in this case, by its breadth, to effectively prejudge the outcome of that question,” IA attorneys argued.
Koeltl sided with the Internet Archive, holding that because the 127 works chosen for the suit were all commercially available works with digital editions, sweeping all the plaintiffs’ books into the final injunction risked being overbroad.
“This action concerned the unauthorized distribution of a select number of works in suit, all of which were ‘available as authorized e-books that may be purchased by retail customers or licensed to libraries,’” Koeltl pointed out in a 4-page order. “That fact was relevant to the court's conclusion that Internet Archive was liable for copyright infringement. In particular, the court's fourth-factor analysis emphasized the ‘thriving e-book licensing market for libraries’ and concluded that Internet Archive ‘supplants the publishers' place in this market’ by ‘bring[ing] to the marketplace a competing substitute for library e-book editions of the works in suit.'"
In an August 15 statement, AAP president and CEO Maria Pallante said Koeltl’s decision would have “a very minimal” impact.
“The overwhelming majority of the tens of thousands of books that plaintiffs make available in print are also commercially available from them as authorized e-books,” Pallante said. "Nor are the plaintiffs precluded from enforcing under the Copyright Act the small percentage of works that may not be covered by the injunction."
With respect to an AAP-IA "side agreement" announced with the negotiated consent judgment last Friday, the AAP can immediately assist their member companies in removing books that are within the scope of the injunction. Separately, AAP will also continue to help members that wish to "remove books that may not be commercially available as e-books at this time," if the IA is offering its own unauthorized versions, Pallante added. "If IA chooses to refuse, it will do so at its own risk under judicial determinations that have been clear that systematic format-shifting is infringement."
The judgment comes after Koeltl delivered an emphatic March 24 summary judgment ruling, finding the IA's program to be infringement, and eviscerating the IA's fair use defense in the process. “At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book,” Koeltl held in his decision. “But no case or legal principle supports that notion. Every authority points the other direction.”
Koeltl’s entry of the final judgment starts the clock on the appeal process.
In a statement late last week, IA officials have vowed to continue the legal battle. “We remain steadfast in our belief that libraries should be able to own, preserve, and lend digital books outside of the confines of temporary licensed access,” IA officials said, in a statement. “We believe that the judge made errors of law and fact in the decision, and we will appeal.”
Meanwhile, IA officials also responded to a suit filed late on August 11 by a group of major record labels in the Southern District of New York. The suit claims the IA’s "Great 78" program, which collects vintage 20th-century 78 RPM recordings (some 400,000 so far), digitizes them, and makes them available to users for free, is copyright infringement. The record companies’ suit specifically points to the publishers' case.
“As a nonprofit library, we take this matter seriously and are currently reviewing the lawsuit with our legal counsel,” IA officials said in a statement, characterizing the program as a preservation effort for “hundreds of thousands of recordings that are stored on shellac resin, an obsolete and brittle medium” and noting that the collection's usage “is tiny.” On average, each recording in the collection is only accessed by one researcher per month, IA officials said.
“When people want to listen to music they go to Spotify. When people want to study sound recordings as they were originally created, they go to libraries like the Internet Archive,” said IA founder Brewster Kahle. “Both are needed. There shouldn’t be conflict here.”
This article has been updated for clarity.