The European Writers’ Council (EWC) co-signed together with 15 Organisations a “friend of the court” brief in Open Library Lawsuit against the Internet Archive. The case is now on appeal before the U.S. Court of Appeals for the Second Circuit.

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On March 22, 2024, the Authors Guild and 15 other authors’ and creator associations and federations filed a “friend of the court” brief in Hachette v. Internet Archive, the copyright lawsuit brought by four major publishers to stop the Internet Archive’s infringing Open Library program.

From the summary by the US Authors’ Guild: “Last year, the publishers scored a resounding victory in the case, when a federal district court in New York ruled that the Internet Archive’s practices constitute copyright infringement and are not fair use. The case is now on appeal before the U.S. Court of Appeals for the Second Circuit.

Our brief urges the court to uphold the district court’s decision in full, explaining that the Internet Archive “has created a vast, unauthorized online database of literary works that anyone in the world can access for free, which differs from the most flagrantly illegal pirate websites only by reason of its residing in a U.S. not-for-profit.” It describes the devastating effect this activity will have on creators’ livelihoods if allowed to continue. The impact is especially severe for sales of backlist books (i.e., those published more than one or two years prior), which are an important source of income for authors. In addition, authors often get their rights to out-of-print books reverted to them and republish them with a smaller publisher or through self-publishing. The Internet Archive argues that these books have no value and that it is doing the world a great service by posting them online regardless of their authors’ desires or plans for the books. In doing so, it defies copyright law by implicitly denying authors exclusive rights in formats that they have not yet chosen to make available.

“The Court should harbor no illusions,” the brief explains. “[T]he ostensibly public-spirited veneer of ‘library lending’ behind which [Internet Archive] seeks to disguise its massive infringement is a Trojan horse.” The Archive’s unsupported “controlled digital lending” theory “undermines the careful balancing of interests that Congress codified in the Copyright Act and poses a grave threat to the livelihoods of countless individual copyright owners.”

Joining the Guild on the brief are: American Photographic Artists, American Society for Collective Rights Licensing, American Society of Media Photographers, Association of American Literary Agents, Canadian Authors Association, Dramatists Guild of America, European Visual Artists, European Writers’ Council—Federation des Associations Europeennes d’Ecrivains, International Authors Forum, National Press Photographers Association, National Writers Union, North American Nature Photography Association, Romance Writers of America, Sisters in Crime, Society of Authors, and Writers’ Union of Canada.

To the Brief.

To the report in Publishers’ Weekly

Background

On July 7, 2022, Hachette Book Group, HarperCollins, Penguin Random House, and Wiley filed a motion for summary judgment in their copyright infringement lawsuit against the Internet Archive, arguing that they have contributed clear evidence to allow the court to declare the mass scanning and distribution of copyrighted books by the Internet Archive (IA) illegal. The lawsuit also takes aim at the “controlled digital lending” (CDL) theory that the Internet Archive has used to justify its copyright violations. For years, the EWC has regularly pointed out the danger of CDL, especially in connection with the so-called “emergency library” of the IA, which during the first corona pandemic made 1.4 million copyrighted works digitally available for free, without license, without remuneration to authors. However, this case of the Internet Archive has not only current significance for the Open Library project, but especially for the future: So, any institution that calls itself a library could scan physical books instead of purchasing e-book licenses. Making these scans available free of charge would do irreparable damage to the e-book market.

For EU member states, the ECJ considered in 2016 the lending of copyright-protected digital content by libraries to be permissible in principle under a to be compensated copyright limitation. However, this would require a new provision in all national copyright laws of the EU member states that comply with the requirements of the “Stichting Leenrecht” ECJ-judgment. There is expressly no obligation under European law for the member states to permit e-lending within any limitation.

The EWC supported the first Amicus Brief in 2022 together with 20 organisations.