By Porter Anderson, Editor-in-Chief
Pallante: ‘In a Cloak of Public Service’
In a week roiled by difficult news—not least today’s (July 8) assassination of Japan’s Shinzo Abe—four primary member-publishers of the Association of American Publishers have filed a motion for summary judgment against the Internet Archive in this case that has international implications because of the reach of Internet connectivity. A “summary judgment” is a way for one party to win a case without a trial.
As Publishing Perspectives readers will recognize, this is a stage in two years of litigation that began in early June 2020, when the publishers, three of them among the Big Five, filed a copyright infringement lawsuit against the Internet Archive, in the US District Court for the Southern District of New York.
Those plaintiff-publishers:
- Hachette Book Group
- HarperCollins Publishers
- John Wiley & Sons
- Penguin Random House
The 2020 lawsuit asked the court to enjoin the San Francisco-based Internet Archive’s “scanning, public display, and distribution of entire literary works”—which it has offered to the international public through what the association terms “global-facing businesses” branded the “Open Library” and “National Emergency Library.”
As you’ll remember, the Internet Archive responded by claiming that its operations in the Open Library and shorter-lived National Emergency Library were couched in a concept called Controlled Digital Lending that it asserted would protect its use of copyrighted content without payment or permission as a form of “fair use,” in some cultures called “fair dealing.”
In its media messaging released to us from embargo shortly before midnight on Thursday (June 7), the association says that after those two years of litigation, “The motion for summary judgment establishes a clear record showing that both the law and the facts of the case are undisputedly in the publishers’ favor.”
Court Filing: ‘Masquerading as a Not-for-Profit Library’
A concise explication of the publishers’ complaint is found in the court filing’s preliminary statement, which says, in part:
“Masquerading as a not-for-profit library, Internet Archive digitizes in-copyright print books on an industrial scale and distributes full-text digital bootlegs for free. Internet Archive has amassed a collection of more than 3 million unauthorized in-copyright ebooks—including more than 33,000 of the publishers’ [and their authors’] commercially available titles—without obtaining licenses to do so or paying the rights holders a cent for exploiting their works.
“Anybody in the world with an Internet connection can instantaneously access these stolen works via the Internet Archive’s interrelated archive.org and openlibrary.org Web sites …
“Having scaled up its operations since the complaint was filed, Internet Archive now ‘lends’ bootleg ebooks to users approximately 25 million times a year.”
In her comment on the day’s request for summary judgment, Maria A. Pallante, the association’s president, and CEO, says, “Outrageously, the Internet Archive has wrapped its large-scale infringement enterprise in a cloak of public service, but that posture is an affront to the most basic principles of copyright law.
