On Friday, August 12, 2022, the Authors Guild filed an amicus brief in Hachette v. Internet Archive, the publishers’ lawsuit against Internet Archive’s unauthorized scanning and distribution of books through the Open Library platform. More than 20 other organizations representing U.S. and foreign writers, genres, photographers, and playwrights signed on. 

The “friend of the court” brief, submitted in the United States District Court for the Southern District of New York, explains the many ways in which Open Library harms authors and the serious consequences that would follow if Internet Archive’s practices were upheld.

The brief explains that Internet Archive’s scanning and distribution of entire books is infringing, and it is not fair use under any copyright law theory. Making copies of copyrighted work, including in different formats, and providing copies to third parties, all without authorization of the copyright owner—as Internet Archive is doing with its Open Library project—is precisely what copyright law protects against, and for good reason. If third parties are allowed to make copies of books, in any format, and sell or give the copies away without permission, those free copies compete with the author’s and make it impossible for an author to earn income from the books. For trade book authors, that means they need to take on other income-producing work and have no financial incentives to publish.

The brief cautions the court that allowing Internet Archive’s practices to continue and others to do the same (as would be the case if Internet Archives prevails) would have devastating effects on the markets that authors rely on for their incomes. First, any entity calling itself a library could simply scan physical books instead of purchasing e-book licenses as they do now. Authors receive a share (generally 25%) of those sales. The easy availability of free e-book copies through a simple Google search would also hurt the consumer e-book market and disincentivize readers from buying licensed e-books.

In addition, the brief urges the court to consider the effects on back in print and reuse markets, the existence of which Internet Archive completely ignores, even though these markets are crucial for most authors today. The brief quotes authors on the importance of reissue income, including how it has helped them meet critical financial obligations such as healthcare. Authors reported making $8-10,000 or more per year just from self-published reissues, but the salient point is that even a few hundred dollars per year from back-in-print uses can be consequential, especially when the median income of full-time authors is $20,300 per year. Displacement of a single licensed sale by unauthorized copies—like Internet Archive’s “e-books”—is magnified because the back-in print market is small and a lost sale cannot be made up for in aggregate volume.

We are confident that our arguments will have an influence in convincing the court to stop Internet Archive’s clearly infringing practices.

Organisations signed on are as below:

IDENTITY AND INTEREST OF AMICI CURIAE

Founded in 1912, The Authors Guild, Inc. (the “Guild”) is a national non-profit association of over 12,000 professional, published writers of all genres including periodicals and other composite works.
American Photographic Artists (“APA”) is a leading nonprofit organization run by, and for, professional photographers since 1981.
The American Society for Collective Rights Licensing (ASCRL) is a not-forprofit corporation representing over 16,000 illustrators and photographers.
The National Press Photographers Association (“NPPA”) is a non-profit organization dedicated to the advancement of visual journalism in its creation, editing and distribution of copyrighted works.
Sisters in Crime is the premier crime writing association, (4500 members) focused on equity and inclusion in our community and in publishing.
Children’s Book Authors and Illustrators is a professional organization specifically for individuals who write, illustrate, and translate for
children and young adults.
The National Writers Union (NWU) is an independent national labor union that advocates for freelance and contract writers and media workers. The NWU includes local chapters as well as at-large members nationwide and abroad.
The International Federation of Journalists (IFJ) is the world’s largest organization of journalists, representing 600,000 media professionals from 187 trade unions and associations in 141 countries.
The Writers’ Union of Canada (TWUC) is the national organization of professionally published writers. Now over 2,500 members strong,
TWUC advocates on behalf of writers’ collective interests.
Graphic Artists Guild, Inc. (GAG) has advocated on behalf of illustrators, graphic designers, and other graphic artists for fifty years.
The European Writers’ Council –  is the federation of 46 national organisations in 31 countries.
Novelists, Inc., is a group of multi-published authors whose statement of purpose is to provide a communications network among published authors of popular novels; to further the professional interests of the organization’s members; to pursue such other goals to be deemed
beneficial to the membership.
American Society of Journalists and Authors is the nation’s largest professional organization for independent nonfiction writers
Canadian Authors Association is Canada’s first and longest-running national writers’ organization.
The Association of Authors’ Agents is a British voluntary trade association whose members are all UK- and Republic of Ireland-based literary agencies.
International Authors Forum (IAF) has over 80 member organisations, representing over 700,000 authors and campaigns for their interests in every country from around the globe, including countries in North America, Europe, Africa, Asia, and Oceania (including NZSA). Member organisations include artists’ societies, writers’ unions, audio-visual authors’ guilds, and collecting societies. T
The Society of Authors is the largest UK trade union for writers. Established in 1884, its membership of nearly 12,000 includes writers, illustrators, and literary translators of all kinds and genres.
The American Society of Media Photographers, Inc. (the “ASMP”) is a 501(c)(6) non-profit trade association representing thousands of members who create and own substantial numbers of copyrighted photographs, films, and other creative works.
Western Writers of America, formed in 1953, is the pre-eminent association of professional writers dedicated to the traditions, legends, development, and history of the American West.
The Dramatists Guild of America is the only professional organization promoting the interests of playwrights, composers, lyricists, and librettists writing for the stage. Established over 100 years ago it has over 8,000 members.
Romance Writers of America (“RWA”), founded in 1980, has a membership of more than 4,000 romance writers.
The Union des écrivaines et des écrivains québécois (UNEQ) is the only representative association of literary artists in Québec (Canada), with over 1,600 members.
European Visual Artists (EVA) represents all collective management organizations in the EU which are managing visual repertoire for over 130,000 authors of visual works, including fine arts, photography, illustration, street art, design, and architecture

Read the full brief below.

Authors Guild, More Than Twenty Other Orgs Submit Brief in Open Library Lawsuit