Tag Archives: publishers

Judge Sets Tentative Trial Date for November 2021

This week, a federal judge issued this scheduling order, laying out the road map that may lead to a jury trial in the copyright lawsuit brought by four of the world’s largest publishers against the Internet Archive. Judge John G. Koeltl has ordered all parties to be ready for trial by November 12, 2021. He set a deadline of December 1, 2020, to notify the court if the parties are willing to enter settlement talks with a magistrate judge. 

Attorneys for the Internet Archive have met with representatives for the publishers, but were unable to reach an agreement. “We had hoped to settle this needless lawsuit,” said Brewster Kahle, Internet Archive’s founder and Digital Librarian. “Right now the publishers are diverting attention and resources from where they should be focused: on helping students during this pandemic.” 

The scheduling order lays out this timeline:

  • Discovery must be completed by September 20, 2021;
  • Dispositive motions must be submitted by October 8, 2021;
  • Pretrial orders/motions must be submitted by October 29, 2021;
  • Parties must be ready for trial on 48 hours notice by November 12, 2021.

In June, Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC—with coordination by the Association of American Publishers—filed a lawsuit to stop the Internet Archive from digitizing and lending books to the public, demanding that the non-profit library destroy 1.5 million digital books. 

Publishers Weekly Senior Writer Andrew Albanese has been covering the story from the beginning. In a July 31st Beyond the Book podcast for the Copyright Clearance Center, Albanese shared his candid opinions about the lawsuit. “If this was to be a blow out, open-and-shut case for the publishers, what do the publishers and authors get?” Albanese asked. “I’d say nothing.”

“Honestly, a win in court on this issue will not mean more sales for books for publishers. Nor will it protect any authors or publisher from the vagaries of the Internet,” the Publishers Weekly journalist continued. “Here we are in the streaming age, 13 years after the ebook market took off, and we’re having a copyright battle, a court battle over crappy PDFs of mostly out-of-print books? I just don’t think it’s a good look for the industry.”

In order to make the vast majority of 20th Century books accessible to digital learners, libraries such as the Internet Archive have been digitizing the physical books they own and lending them on a 1-to-1 “own to loan” basis—a legal framework called Controlled Digital Lending. Publishers refuse to sell ebooks to libraries, insisting on temporary licenses on restrictive terms.  This business practice “threatens the purpose, values, and mission of libraries and archives in the United States,” explains Kyle K. Courtney, copyright advisor to Harvard University Libraries. “It undermines the ability of the public (taxpayers!) to access the materials purchased with their money for their use in public libraries and state institutions, and further, it is short sighted, and not in the best interest of library patrons or the public at large.” 

“Libraries have always had the right to buy and lend books. It’s at the core of a library’s mission,” said Kahle. “The Internet Archive would like to purchase ebooks, but the publishers won’t sell them to us, or to any library. Instead they are suing us to stop all learners from accessing the millions of digitized books in our library.”

Copyright Expert on Publishers Lawsuit: “The idea that lending a book is illegal is just wrong”

On July 22, 2020, Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law and Information at the University of California, Berkeley, spoke at a press conference about the copyright lawsuit against the Internet Archive brought by the publishers Hachette, HarperCollins, Wiley, and Penguin Random House. These are her remarks:

Good afternoon. Very happy to be here with you today. The Authors Alliance has several thousand members around the world and we have endorsed the controlled digital lending as a fair use and I think that this is a lawsuit I hoped would never happen. Because controlled digital lending has been going on for such a long time, it’s really tragic that at this time of pandemic that the publishers would try to basically cut off even access to a digital public library like the Internet Archive is running.

I don’t know about your library, but my libraries in California are closed. I can’t get any books out of even the University of California Berkeley Library at this point, the whole campus is closed, and so while I haven’t been using the Open Library for my research purposes because they don’t have the books in it that I need, I do think that that it’s just a heartless, tragic thing that this lawsuit is really trying to stop a very positive thing that Internet Archive has been doing.

I’m one of the legal scholars who has endorsed the controlled digital lending statement. I think that even under some second circuit opinions, one can say that the Open Library has actually a utility-enhancing transformative use. It’s certainly nonprofit, it’s educational, and it promotes literacy and many, many positive things. I think that the idea that lending a book is illegal is just wrong.

I would actually like to point out that in Germany, where copyright laws are generally stronger than in the United States, that the Darmstadt Technical University was able to succeed in its non-infringement claim for digitizing a book, and here’s the important point: just because the publisher wanted to license an ebook to that library, the Court of Justice of the European Union said it’s not an infringement for the library to actually digitize one of its own books and make that book available to the public. So if that’s true in Germany, I think it should be true in the US as well.

About the speaker:

Pamela Samuelson is the Richard M. Sherman Distinguished Professor of Law and Information at the University of California, Berkeley. She is recognized as a pioneer in digital copyright law, intellectual property, cyberlaw and information policy. Since 1996, she has held a joint appointment at Berkeley Law School and UC Berkeley’s School of Information. Samuelson is a director of the internationally-renowned Berkeley Center for Law & Technology. She is co-founder and chair of the board of Authors Alliance, a nonprofit organization that promotes the public interest in access to knowledge. She also serves on the board of directors of the Electronic Frontier Foundation, as well as on the advisory boards for the Electronic Privacy Information Center , the Center for Democracy & Technology, Public Knowledge, and the Berkeley Center for New Media.

Libraries have been bringing older books to digital learners: Four publishers sue to stop it

I wanted to share my thoughts in response to the lawsuit against the Internet Archive filed on June 1 by the publishers Hachette, Harpercollins, Wiley, and Penguin Random House.

I founded the Internet Archive, a non-profit library, 24 years ago as we brought the world digital. As a library we collect and preserve books, music, video and webpages to make a great Internet library.

We have had the honor to partner with over 1,000 different libraries, such as the Library of Congress and the Boston Public Library, to accomplish this by scanning books and collecting webpages and more. In short, the Internet Archive does what libraries have always done: we buy, collect, preserve, and share our common culture.

But remember March of this year—we went home on a Friday and were told our schools were not reopening on Monday. We got cries for help from teachers and librarians who needed to teach without physical access to the books they had purchased.

Over 130 libraries endorsed lending books from our collections, and we used Controlled Digital Lending technology to do it in a controlled, respectful way.  We lent books that we own—at the Internet Archive and also the other endorsing libraries. These books were purchased and we knew they were not circulating physically. They were all locked up. In total, 650 million books were locked up just in public libraries alone.  Because of that, we felt we could, and should, and needed to make the digitized versions of those books available to students in a controlled way to help during a global emergency. As the emergency receded, we knew libraries could return to loaning physical books and the books would be withdrawn from digital circulation. It was a lending system that we could scale up immediately and then shut back down again by June 30th.

And then, on June 1st, we were sued by four publishers and they demanded we stop lending digitized books in general and then they also demanded we permanently destroy millions of digital books. Even though the temporary National Emergency Library was closed before June 30th, the planned end date, and we are back to traditional controlled digital lending, the publishers have not backed down.

Schools and libraries are now preparing for a “Digital Fall Semester” for students all over the world, and the publishers are still suing.

Please remember that what libraries do is Buy, Preserve, and Lend books.

Controlled Digital Lending is a respectful and balanced way to bring our print collections to digital learners. A physical book, once digital, is available to only one reader at a time. Going on for nine years and now practiced by hundreds of libraries, Controlled Digital Lending is a longstanding, widespread library practice.

What is at stake with this suit may sound insignificant—that it is just Controlled Digital Lending—but please remember– this is fundamental to what libraries do: buy, preserve, and lend.   

With this suit, the publishers are saying that in the digital world, we cannot buy books anymore, we can only license and on their terms; we can only preserve in ways for which they have granted explicit permission, and for only as long as they grant permission; and we cannot lend what we have paid for because we do not own it.  This is not a rule of law, this is the rule by license. This does not make sense. 

We say that libraries have the right to buy books, preserve them, and lend them even in the digital world. This is particularly important with the books that we own physically, because learners now need them digitally.

This lawsuit is already having a chilling impact on the Digital Fall Semester we’re about to embark on. The stakes are high for so many students who will be forced to learn at home via the Internet or not learn at all.  

Librarians, publishers, authors—all of us—should be working together during this pandemic to help teachers, parents and especially the students.

I call on the executives at Hachette, HarperCollins, Wiley, and Penguin Random House to come together with us to help solve the pressing challenges to access to knowledge during this pandemic. 


Please drop this needless lawsuit.  

–Brewster Kahle, July 22, 2020

Major Public Interest Group Launches Campaign to Let Libraries Fight Back

This month, Public Knowledge, a major public interest group promoting an open internet, launched a new campaign: Tell Congress to Let Libraries Fight Back

Fight back against what? you may be wondering. 

Put simply, the campaign asks Congress to clarify libraries’ right to buy and lend books today as they have done for centuries.

Today, amidst a skyrocketing demand for digital books, many books are not available on digital shelves at any price because there are no commercially available  digital versions of older titles.  This gap limits how libraries can serve their patrons.

“Many libraries are currently closed, and sadly it looks like they may be for months to come,” said John Bergmayer, Legal Director of Public Knowledge.  “We need to make sure that libraries can continue serving their communities, not just during the pandemic, but after, as tightened budgets put the squeeze on library services and limit the scope of their collections.”

Filling the Gap with Controlled Digital Lending

Libraries have begun making and lending out digital versions of physical works in their collections based on current legal protections—a practice called Controlled Digital Lending, or CDL. As Public Knowledge’s Let Libraries Fight Back campaign explains: 

CDL is a powerful tool to bridge the gap between print and electronic resources. Under CDL, a digital copy of a physical book can only be read and used by one person at a time. Only one person can “borrow” an electronic book at once,  and while it is being lent electronically, the library takes the physical book out of circulation.

CDL allows libraries to reach their patrons even when those patrons can’t make it to the physical library — a problem that’s been more prevalent than ever during the pandemic. Without programs like this, library patrons are prevented from accessing a world of content and information — and low-income, rural, and other marginalized communities are hit the hardest.

However, Public Knowledge acknowledges that the challenge extends beyond print materials. “Controlled Digital Lending makes it so that a library’s existing print collection is more useful, and can be accessed remotely,” explained Bergmayer. “But we also need to make sure that libraries can acquire digital-native books and other media under the same terms they have always operated under.”

Learn More

Public Knowledge believes a true solution may take Congressional action, so they are calling upon the public to tell Congress to ensure that libraries are free to buy ebooks and other electronic materials and lend them out, just as they can with physical media.

Learn how you can support pro-library policies with Public Knowledge’s Let Libraries Fight Back Campaign.

Why Publishers Support E-book Lending with OpenLibrary.org: A Q&A with Smashwords Mark Coker

Photo of Mark Coker

Mark Coker Founder, CEO Smashwords

This Q&A kicks off a series of conversations with visionary publishers who support e-book digital library lending with OpenLibrary.org.

Mark Coker, Founder, CEO and Chief Author Advocate, founded Smashwords  to change the way books are published, marketed and sold.  In just three years it has become the leading ebook publishing and distribution platform for independent authors and small publishers.  The Wall Street Journal named Mark Coker one of the “Eight Stars of Self-Publishing” in 2010. He is a contributing columnist for the Huffington Post, where he writes about ebooks and the future of publishing. For Smashwords updates, follow Mark on Twitter at @markcoker.

Q. What is the relationship between publishers and Open Library?

A: “There is an intersection of common interest with publishers and Open Library – the passionate desire to get books to readers. The innovators at Open Library understand that the way people access books is an ongoing evolution and they are at the forefront of finding solutions to support all the key stakeholders – publishers and distributors, authors and most of all, readers.

Q: How do Libraries help to support book distribution?

old man reading computer

“Its simple – the more readers have a chance to engage with a book, the more likely they are to recommend it, or purchase it.”


A: Open Library purchases your books and shares them with readers by creating a web page for each book, with a cover photo and descriptive information. There are prompts to read, borrow and buy. Open Library has more than 4,600,000 unique visitors a month.

Q: What makes Smashwords different from other publishing organizations?

A: Smashwords represents 19,000 indie authors and small presses who handle the writing, editing and pricing of their books. We distribute these titles to major retailers such as Apple, Barnes & Noble, Sony, Kobo and Diesel. We believe that authors should maintain the creative and financial control of their work and receive the lion share of income. Our authors keep upwards of 85% of the profits on the books we distribute.

Q. Why are some publishers and authors excited about e-books accessed via public libraries?

“If you build it, they will come.”

A: Our authors and publishers rely on Smashwords to open up new opportunities to reach readers. We’re working with most of the biggest indie authors, and many of them are excited about libraries. Open Library and its partners believe, “if you build it, they will come and I agree.  As demand for ebooks through a digital public library systems increase, publishers will better understand the value of partnering with Open Library. We hope they utilize Smashwords to reach these new distribution venues.

Buying E-Books from Smashwords

Young Adult e-Books by Amanda Hocking available on OpenLibrary.org

Smashwords’ best-selling authors contribute to OpenLibrary.org

Smashwords, the largest distributor of independently published literature, recently provided the Internet Archive and OpenLibrary.org with its first installment of e-Books from best known, best-selling e-Book authors including: Young Adult sensation Amanda Hocking; Fantasy author, Brian Pratt; Romance novelist Ruth Ann Nordin; and Business Expert, Gerald Weinberg.

Mark Coker, CEO of Smashwords believes that libraries are crucial to every publisher’s survival because they provide the face to face connection between readers, authors and books.

“We see tremendous value in partnering with the Internet Archive. Their visionary leadership is helping to create a worldwide digital public library.”
Mark Coker, CEO, Smashwords

The deposit by Smashwords was a first attempt at demonstrating the feasibility of making modern books more globally accessible through OpenLibrary.org. Next up – the creation of a new model that supports the on-going purchase of e-Books by participating libraries.

“The publishing world is rapidly changing,” asserts Coker, “There’s plenty of room for numerous distribution models and in my opinion, publishers should be bending over backwards to support these initiatives.”