18 July 2022CopyrightMuireann Bolger

IP dons rally against publishers in copyright dispute

The legal wrangle pits academics against major companies and the Authors Guild, which have sued a free digitised resource for “mass infringement” |  Harvard Law School | Electronic Frontier Foundation.

Leading IP academics have waded into a major copyright dispute waged by book publishers Penguin and HarperCollins against a free online digital library over what constitutes “fair use”.

According to a flurry of amicus briefs filed on July 14 and 15 at a federal court in New York, the complaints of infringement filed by the publishers against the Internet Archive should be dismissed.

Founded by tech entrepreneur Brewster Kahle in 1996, the San-Francisco-based digital resource enables the public to view large collections of digitised music, books and film for free.

In June 2020, a quartet of major publishers— John Wiley & Sons, Hachette Book Group, HarperCollins and Penguin Random House backed by the Authors Guild—sued the Internet Archive, accusing the organisation of engaging in “willful mass copyright infringement”.

In the complaints, the publishers identified 127 titles they claim were shared digitally in violation of copyright laws and are claiming damages in the realm of $19 million.

‘Access to knowledge’

In her brief supporting the archive, Rebecca Tushent, professor of Law at Harvard Law School, held that the case “provides an opportunity” for the court to recognise the special role that noncommercial, nonprofit uses play in supporting freedom of speech and access to knowledge.

“Noncommercial, nonprofit uses such as those made by libraries receive special consideration in the fair use analysis because those uses serve important democratic interests that aren’t served elsewhere, are easily suppressed because they aren’t supported by the profit motive, and have different market effects than profit-seeking uses,” she wrote.

Earlier this month, the Electronic Frontier Foundation (EFF) submitted a 45-page brief in support of the Internet Archive’s motion that the federal court in New York City should throw out the lawsuit.

According to EFF’s brief, the archive’s activities constitute lawful fair use that preserves traditional library lending in the digital world.

The Internet Archive is advancing the purposes of copyright law by furthering public access to knowledge and facilitating the creation of new creative and scholarly works, said the organisation.

In a press release, the EFF stated: “The Internet Archive’s digital lending hasn’t cost the publishers one penny in revenues; in fact, concrete evidence shows that the Archive’s digital lending does not and will not harm the market for books.”

Tushnet and the EFF were joined by a host of other supporting voices who also filed their support of the archive, including 17 copyright scholars led by Jason Schultz, professor of clinical law, director of New York University’s technology law and policy clinic, and co-director of the Engelberg Centre on innovation law and Policy.

‘Unlawful piracy’

But Douglas Preston, president of the Authors Guild, which supported the publishers’ lawsuit, argued that the archive’s activities were “a flagrant violation” of the US Copyright Act.

In a strongly-worded comment article for The Bookseller, he insisted that: “The case of the Internet Archive shows that when you pit freedom of speech against author payment, only the rich come out on top.”

Preston said that he and the guild had tried and failed to initiate a dialogue with Kahle and Internet Archive in a long-running bid to create a legitimate licensing system for the archive to follow.

“Let us be absolutely clear: Internet Archive is not a library in any true sense of the word. It is an unlawful piracy operation. Legitimate libraries pay for e-books. From this fee the author receives a small royalty, and the publisher is compensated. Internet Archive pays authors and publishers nothing,” he wrote.

It is galling, he added, for authors to see tech millionaires such as Brewster Kahle “helping themselves to our books without paying for them”, and then “applauding themselves” for providing a public service.

“This is no different than pickpocketing someone on the street and then expecting to be congratulated because you donated the money to charity,” insisted Preston.

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