On Friday, October 7, the Internet Archive filed a reply brief against the four publishers that sued Internet Archive in June 2020: Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House. This is the final brief in support of our motion for summary judgment (our previous motions can be found here and here) where we have asked the Court to dismiss the lawsuit because our lending program is a fair use.
The lawsuit was filed against Internet Archive in 2020 because of “anger among publishers” about digital lending by libraries. The publishers are urging the court to declare that “controlled digital lending is not a defense to copyright infringement” and is unlawful under United States law. They allege that controlled digital lending deprives them of the opportunity to obtain millions of dollars in additional “revenues from both public and academic libraries” through expensive ebook licensing schemes. Unwilling to confront library lending on its own terms–as an obviously not-for-profit exercise in expanding access to information–they claim that our lending is “commercial” and “does not serve the type of ‘educational purpose’ recognized under the Copyright Act.”
As the reply brief explains, the Internet Archive is indisputably a non-profit organization whose free lending program–like all library lending–serves a noncommercial, educational mission: to expand access to knowledge. And there is no evidence that controlled digital lending harmed their sales or profits at all–as the brief argues, “rather than making use of their unfettered access to more than a decade of empirical data, [the publishers] simply assert that market harm is ‘self-evident.’” Indeed:
“All that CDL does, and all it can ever do, is offer a limited, digital alternative to physically handing a book to a patron. Libraries deciding how to meet their patrons’ needs for digital access to books are not making a choice between paying ebook licensing fees or getting books for free. Libraries pay publishers under either approach—but digital lending lets libraries make their own decisions about which books to circulate physically, and which to circulate digitally instead. That choice means that librarians can continue to maintain permanent collections of books, to preserve those books in their original form for future generations, and to lend them to patrons one at a time, as they have always done. “
Read our full brief here.