Book publishers, Internet Archive spar over fate of digital-book lending lawsuit

A pedestrian walks past the Martin Luther King Jr. Memorial Library in Washington, D.C. January 28, 2022. REUTERS/Joshua Roberts
  • Archive's digital lending of scanned books challenged
  • Archive claims it functions like a physical library
  • Says it makes fair use of works

(Reuters) - The Internet Archive and a coalition of major book publishers submitted dueling arguments Friday to persuade a Manhattan federal court that they deserve an immediate win in their potential landmark copyright dispute over digital lending.

The parties squared off in opposing court papers over the legality of the Archive's "controlled digital lending" of digitally scanned print books, which the Archive equates to traditional library lending but the publishers call a front for mass infringement.

Terrence Hart, general counsel for the publishers' trade group the Association of American Publishers, said Tuesday that controlled digital lending "bears no relation to what legitimate libraries do" and is "nothing more than a rhetorical smoke screen for industrial-level infringement."

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A spokesperson for the Electronic Frontier Foundation, which represents the Archive, said Tuesday that it had no comment beyond the text of its brief.

Hachette Book Group, HarperCollins Publishers, John Wiley & Sons Inc and Penguin Random House sued the San Francisco-based Internet Archive in June 2020 over its free lending of digitally scanned copies of their print books during COVID-19 shutdowns.

The parties in July each asked for summary judgment before trial on their respective claims. The Archive told the court then that it bought all of the books legally, limits its digital lending in the same way as brick-and-mortar libraries, and should be protected by the fair-use doctrine.

The publishers responded Friday that the Archive's argument is a "study in blind denial that ignores established law." They said courts and Congress have rejected the Archive's position that buying physical books allows it to create "millions of unauthorized ebooks."

They also said the Archive "displays contempt for authors" by usurping the market for their e-books, and challenged the Archive's assertion that its project is not commercial.

The brief cited the project's "symbiotic" relationship with the for-profit, socially conscious bookseller Better World Books, which is owned by an Archive-affiliated nonprofit.

The Archive said Friday that the publishers' July motion was "thick with accusation and rhetoric, but thin on actual evidence," providing no proof of economic harm.

"Their conflation of licensed ebooks with scanned copies of physical books exposes the real goal of this lawsuit," the Archive said. "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."

The case is Hachette Book Group Inc v. Internet Archive, U.S. District Court for the Southern District of New York, 1:20-cv-04160.

For the publishers: Elizabeth McNamara of Davis Wright Tremaine, Scott Zebrak of Oppenheim + Zebrak

For the Internet Archive: Joseph Gratz of Durie Tangri, Corynne McSherry of the Electronic Frontier Foundation

(NOTE: This story has been updated with comment from the publishers.)

Read more:

Book publishers, Internet Archive ask court to decide ebook-lending fight

Book publishers sue over 'emergency' online library set up during pandemic

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Blake Brittain reports on intellectual property law, including patents, trademarks, copyrights and trade secrets. Reach him at blake.brittain@thomsonreuters.com