With the opening appeal briefs now filed in the copyright infringement case over the Internet Archive’s scanning and digital lending of print library books, the filing of amicus briefs is also now complete. In appeal proceedings, amicus briefs must generally be filed within seven days after the principal brief of the party being supported is filed.
Six amicus briefs were submitted last week on behalf of the publishers from a host of publishing, author, and copyright associations, as well as copyright and IP scholars after the publishers filed their opening appeal on March 15.
Internet Archive lawyers filed their principal appeal brief on December 15, and 11 amicus briefs were filed in support of the Internet Archive a week later, in December, representing librarians and library associations, authors, public advocacy groups, law professors, and IP scholars, although some of the IA amicus briefs are presented as neutral.
The briefs are the latest development in the long-running copyright infringement case and come a year after a ruling by judge John G. Koeltl on March 24, 2023 that emphatically rejected the IA’s fair use defense, finding the scanning and lending of print library books under a protocol known as “controlled digital lending” to be copyright infringement.
The Internet Archive’s reply brief is now due on April 19, and oral arguments are expected to be set for this fall. Amici filing briefs so far include:
Briefs Supporting the Publishers
24 former government officials, former judges, and IP scholars: “Physical and digital copies simply are different, and it is not an accident that first sale applies only to the distribution of physical copies. Ignoring decades of research and debate, IA pretends instead that Congress has somehow overlooked digital first sale, yet left it open to the courts to engage in policymaking by shoehorning it into the fair use doctrine. By doing so, IA seeks to thwart the democratic process to gain in the courts what CDL’s proponents have not been able to get from Congress.”
Authors Guild and 17 author/creator associations: “The Court should harbor no illusions: the ostensibly public-spirited veneer of ‘library lending’ behind which IA seeks to disguise its massive infringement is a Trojan horse. CDL undermines the careful balancing of interests that Congress codified in the Copyright Act and poses a grave threat to the livelihoods of countless individual copyright owners who are members of Amici. The District Court’s decision should be affirmed in all respects.”
Copyright Alliance: “The creative industries’ adaptation to changing technologies and platforms, incentivized by the protections of the Copyright Act, has sought to promote the ‘useful Arts’ as the Framers intended in the Constitution. Allowing Appellant to misappropriate protected works would risk significant damage to those industries, which according to the U.S. Patent and Trademark Office accounts for at least 63 million U.S. jobs, or 44 percent of all U.S. employment.”
International Publishers Association and other international publishers associations: “The Internet Archive's unauthorized reproduction and distribution of copyrighted works does not solely impact the U.S. market. By distributing internationally, the Internet Archive hurts international publishers in the U.S. as well as in their home markets, including many of the Amici's international versions.”
Copyright and IP scholars: Unlike private actors, Congress has the ability to consult with and weigh the interests of all affected stakeholders, and consider how best to achieve the constitutional goal of promoting progress through the protections of copyright… Evidently believing there is strength in numbers, IA and its advisors—sophisticated actors with the benefit of counsel—nonetheless elected not only to itself adopt, but to promote, the CDL model as an acceptable legal construct. They did so in the face of an abundance of precedent that clearly establishes that the systematic reproduction and digital distribution of copyrighted books in the manner they advocate is not permitted under the Copyright Act.
Recording Industry Association of America and other associations: “Deeming Internet Archive's mass reproduction and distribution program to be fair use would no doubt embolden not only Internet Archive itself but also other online platforms to freely ‘lend’ all types of copyrighted works to the public in digital formats. That would catastrophically harm the digital markets on which the music industry, the movie and television industry, the news industry, and similar industries depend to profitably create and distribute their works and would thereby undermine the incentive for the creation of new works that copyright law exists to protect.”
Briefs Supporting the Internet Archive
American Library Association and Association of Research Libraries: “We file in support of neither party to provide this Court with additional information about the vital role fair use plays in libraries… The district court’s determination that the Internet Archive was engaged in a ‘commercial’ use for purposes of the first statutory factor is based on a circular argument that seemingly renders every would-be fair use ‘commercial’ so long as the user benefits in some way from their use.”
Authors Alliance: “We seek to offer a more nuanced perspective, demonstrating the myriad ways that CDL can help authors reach their goals: while some authors may share plaintiffs’ view of CDL as inconsistent with their interests, authors are not a monolith, and many support it strongly.”
Center for Democracy & Technology, Library Freedom Project, and Public Knowledge: Amici’s sole interest in this case is to assist the Court by highlighting how the loss of controlled digital lending as a library lending option would harm reader privacy…Readers should not have to choose to either forfeit their privacy or forgo digital access to information; nor should libraries be forced to impose this choice on readers.”
Copia Institute: “A world where the district court is right, and what the Internet Archive did was wrong, is a world where copyright law harms the very outcome it was intended to enable.”
A coalition of 11 Copyright Scholars: “The major publishers refuse to sell digital books to libraries, forcing them to settle for restrictive licenses of digital content rather than genuine ownership. Moreover, publishers insist they can prevent libraries from scanning their lawfully purchased physical books and lending the resulting digital copies. In agreeing with this position, the district court took a dangerously narrow view of the fair use doctrine and undermined copyright law’s longstanding protection of library lending.”
The eBook Study Group, Library Futures, EveryLibrary Institute, ReadersFirst, SPARC, ASERL, BLC, PALCI, Urban Libraries Unite, and more than 200 individual librarians: “[L]ibrary loaning programs are a core part of copyright law. Library practices reflect a commitment to both the economic and access goals of copyright: purchasing books from publishers, vendors, and authors; adding them to collections; and establishing loaning programs to provide open, non-discriminatory access to the copyrighted content that is legally purchased or acquired and preserving that work for future generations.”
HathiTrust: “The district court erred in its finding that the Internet Archive’s Open Libraries program is a ‘commercial activity’ for purposes of fair use. Instead, a library is a nonprofit organization that provides access to knowledge and cultural heritage, which is the distinctly noncommercial mission of all libraries.”
IP Law Professors: “Amici urge this Court to adopt a more straightforward, commonsense, and statutorily grounded distinction between commercial and nonprofit uses in order to maintain the statutory framework Congress so carefully crafted… Freedom to participate in public life requires the resources to participate and the freedom to debate and disagree about meaning of shared culture. And this requires robust nonprofit institutions providing access to the basic elements of culture.”
Kevin L. Smith and William M. Cross: “A ruling that rejects or limits CDL could pose a fundamental threat to libraries’ contributions as stewards of the variety of inquiry and expression on which our democracy and culture depend.”
Over 50 law library directors, professors, and scholars: “The district court inappropriately merged over a dozen different uses of copyrighted material found in this case into one fair use analysis, despite differing facts, purposes, and impact. This merger oversimplifies the analysis, resulting in a single conclusion that is not only overly broad, but also contrary to the bedrock principle that alleged violations of fair use must be analyzed on a case-by-case basis.”
Wikipedia, Creative Commons, and Project Gutenberg. “Amici are concerned that the district court’s approach to fair use could render any nonprofit secondary use of copyrighted material “commercial” under the first fair use factor. This, in turn, could severely undermine nonprofit fair use.”
