SCOOP: Interpreting the Internet Archive Injunction
/September 05, 2023
In March 2023, the trial court in the lawsuit against Internet Archive granted the motion of the publisher plaintiffs for summary judgment. The trial court directed the parties to collaboratively craft a recommended judgment (known as a “consent judgment”) to be entered in the matter disposing of the case at this stage of the litigation. The parties presented their recommendation to the trial court in mid-August, and the trial court issued a brief opinion approving of the consent judgment with an interesting caveat.
Background
For years, libraries have engaged in a practice known as controlled digital lending (CDL) whereby print books are digitized, the print version removed from physical circulation, and the digital version lent to authorized patrons with varying measures of control to prevent further distribution or circulation in excess of the number of print copies owned by that library. The Internet Archive (IA) is one of the largest implementers of CDL, and in the early days of the pandemic, it loosened these control measures as part of a “National Emergency Library” initiative. Several publishers sued IA for copyright infringement, listing 127 digitized books as a sample of the several thousand that IA has digitized. Both sides filed motions for summary judgment asking for ruling in their respective favor without a trial.
Permanent injunction against IA
Earlier this year, the trial court granted the publishers’ motion for summary judgment and instructed the parties to preferably come to an agreed procedure for concluding the trial phase of the case. The parties presented their recommendations to the trial court last month, and the trial court swiftly accepted their recommendations with a caveat that has left libraries conjecturing how they might continue CDL practices.
In the brief opinion accepting the parties’ recommendation, the trial court issued a permanent injunction against IA barring it from lending unauthorized scans of the publishers’ books. However, it limited the scope of the injunction to cover only those print books for which there was already an e-book available (as is the case of the 127 books listed in the initial complaint). The trial court declined to extend application of the injunction to all the digitized, in-copyright books. Nevertheless, IA has announced its intention to appeal. The results of that appeal, however, are likely a few years away.
What does this decision mean for libraries?
Although the ruling in this case only legally applies to the parties to it, it is instructive to libraries who have or are thinking about CDL. Clearly, libraries should refrain from digitizing or remove already digitized versions of print books in their collections for which an e-book is commercially available. But what about all the titles for which there may not currently be an e-book version available?
When this final judgment was rendered, it was revealed that the Association of American Publishers (AAP) entered into a side agreement with IA to facilitate removal of digitized books of their member publishers who were not parties to the suit. Further, comments by the AAP and others reveal strong disapproval of the trial court’s limitation to only those titles that currently have e-books available. Whether they patiently wait for this to be resolved on appeal or try this issue in other jurisdictions remains to be seen, but libraries should be aware of and guided by this contention and acknowledge that it is potentially an unresolved issue.
Libraries should engage in careful risk assessment when selecting titles to digitize and lend under the CDL model. One consideration is whether the title is likely to be made available as an e-book. Libraries may not want to commit resources to digitizing works for which a licensed e-book may become available; publishers may decide, in the wake of this decision, to reevaluate whether they have rights to make their catalog of works available as e-books. Another consideration in completing a risk assessment is whether the title in question is an “orphan work,” that is, asking if the title have a readily identifiable copyright holder. Libraries may also want to learn more about expiration of copyright protection for works published in the 1950s, 1960s and 1970s when requirements of registration and renewal were part of copyright law in the United States. Finally, libraries should also consider fair use, particularly how it has been shaped in digitization cases such as the Google Books and HathiTrust cases.
Further reading
Intellectual property attorney and friend of libraries Jonathan Band offers his take on the Internet Archive injunction, and what libraries should do now, in this interview with University of Illinois copyright librarian Sara Benson. Read more.
Blog post from the Authors Alliance offering their take on the judgment.
SCOOP has covered this case from the beginning. See our initial coverage of the lawsuit here and our write-up on the summary judgment motions ruling earlier this year.
The SCOOP, Scholarly COmmunication and Open Publishing, is a monthly column published to inform Atla members of recent developments, new resources, or interesting stories from the realm of scholarly communication and open access publishing.
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