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.”

9 thoughts on “Judge Sets Tentative Trial Date for November 2021

  1. Adam

    “Publishers refuse to sell ebooks to libraries, insisting on temporary licenses on restrictive terms”.

    They’re joining the subscription bandwagon. They wanted something akin to “recurrent user spending” (a term used in the game industry, mainly said by a game critic, Jim Sterling: https://www.youtube.com/user/JimSterling ), they wanted a business model of instead of paying once per product, the user is expected to pay periodically for enjoyment or continued use of a product.

    These examples are:
    -These companies compared physical sharing of a product to piracy:
    –Textbook publishers have been trying to do-away second-hand sales: https://www.techdirt.com/articles/20190716/17335842600/death-ownership-educational-publishing-giant-pearson-to-do-away-with-print-textbooks-that-can-be-resold.shtml?op=sharethis

    –And the same goes with other media, such as video games: https://www.techdirt.com/blog/?tag=used+games

    -No joke, it’s like if you give something (a video game, book, anything that is copyrighted on a physical medium) to a friend physically, you are infringing copyright for allowing that friend to use that material for free even if you didn’t copy it at all. They wanted to be able to charge per person playing it rather than just a 1-time purchase and you’re free to use it.

    -Turning what you pay for into a subscription. Examples are:

    –Anti-right to repair: Manufacturers like Medical Imaging and Technology Alliance (MITA) and John Deere wanted to ensure that their consumers are continually “supporting” them whenever their equipment breaks and not to have them continually use them for free by maintaining them.

    –Modern video games’s monetization schemes. Electronic arts, Activision, and many others are notorious for their games having microtransactions and other monetization practices. It is very common you’ll find a video game with an upfront price of $60, but then when playing them, the game expects the player to spend even more money for in-game items, and sometimes they are even consumable. “Live services” may become the norm.

    –Even printer inks are doing this: https://www.howtogeek.com/403346/hps-ink-subscription-has-drm-that-disables-your-printer-cartridges/ (this one is subtle). On top of the well known fact that printer companies want to make sure you keep buying their inks (refuses cheaper third-party inks, wastes cyan + refuses to print at all if any cartridges goes empty (even when they’re not needed, such as black and white)), it is a monopoly of this “vendor lock-in”. The company, HP, goes out of their way to PUNISH you if you cancel your subscription, which voids the ink cartridges that are subscription-only.

    It is a loophole in the law that publishers exploited that many of the copyright’s limitations such as the “First Sale Doctrine” don’t work in the digital world; they mostly apply to physical goods. Because everything is increasingly going digital, these now-old copyright limitations are increasingly going obsolete.

    Even without this lawsuit, this is a dangerous concern as things that are exempt from copyright limitations we rely on may not work in the future. I am very worried that Libraries may become obsolete thanks to this problem with the law.

    1. Adam

      I’m not saying all subscriptions are bad, it might be the reason is due to the fact that if everyone have a given product, and are allowed to continue using it indefinitely, eventually the money made from sales will fall because everyone already has one and don’t need to continue buying them anymore.

      On top of that, and before book publishers went ebook, they jack the prices for libraries: https://www.techdirt.com/articles/20191108/23524343352/giant-publisher-macmillan-goes-to-war-against-libraries.shtml so much for them “not making enough money” when they are your biggest customer. They betrayed libraries.

      1. Eric

        Adam: That is the very point and essence of Copyright law. To provide a limited period of monetization for the purpose of encouraging and rewarding creativity, so more creativity can happen. It’s one thing to charge a subscription fee for an ever evolving and expanding video game like World of Warcraft, but it would make no sense to bill somebody $6 per month just so they can continue owning their 1898 unaltered hardcover copy of War of the Worlds.

        That’s why Copyright is supposed to expire into Public Domain after an extremely limited period, what used to be 7, 14 or 28 years (if an extension is granted), and is now 105 years, maybe 170 years. All intellectual works belong to the Public Domain as a Rule. Copyright is the Exception. That “brief period” to monetize has become ridiculous. These are the songs and stories of my people, my culture, my heritage.

  2. Wynchword

    Why don’t these people strike a compromise?

    Let people read 100 pages, or half the book, on Internet Archive free.

    Then have a OBVIOUS button to allow readers to finish the book for a small fee. If the reader isn’t hooked by then and anxious to find out how the book ends, it’s not worth paying for!! Believe me, by then readers will pay. But please, make the fee reasonable. Have another button to allow readers to buy their own downloadable version (in better quality) for a (naturally) slightly larger fee. Because let’s face it, though free, the quality of print on the Internet Archive is usually terrible! And it is much less strain on the computer to read a pdf offline than to be constantly streaming content.

    Am I the only one to find it frustratingly hard to buy and eBook when I want to?

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  4. Charles Daniel

    This is a very observant reply. Good analogy with the “video game sharing”, I never would have thought of that. Pros and cons to this are most textbooks are obsolete after only a couple years anyway. Ebooks are really the way of the future, sadly we have to pay for a book subscription. In law school, I wanted to use my friends textbook from previous year as they are grossly expensive, only to learn same instructor was now using an “updated” version. Reselling what they consider outdated material renders the book useless and to collect dust in an archive room such as the above pictured. Very frustrating…
    Charles,
    http://calcriminaldefenselawyers.com

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