Internet Archive Wants Publishers’ Sales Data to Show Digital Library Doesn’t Hurt Sales

In March 2020, with the world gripped by the coronavirus pandemic, the Internet Archive (IA) offered a new service to help displaced learners.

The National Emergency Library (NEL) was built on IA’s existing Open Library and initially granted access to more than a million scanned books so that people could educate themselves while in quarantine. The service was not appreciated by book publishers.

Publishers Sue IA For Copyright Infringement

In a lawsuit filed June 1, 2020, in a New York court, Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC – all members of the Association of American Publishers – accused the Internet Archive of running a pirate site.

“Defendant IA is engaged in willful mass copyright infringement,” the complaint alleged.

“Without any license or any payment to authors or publishers, IA scans print books, uploads these illegally scanned books to its servers, and distributes verbatim digital copies of the books in whole via public-facing websites.”

With claims including direct infringement on a sample of 127 books, the publishers demanded $150,000 in statutory damages per infringement. They also claimed that IA could be held secondarily liable for infringement carried out by the library’s users.

Internet Archive Responds – Fair Use is Not Piracy

With calls from IA founder Brewster Kahle to make peace apparently ignored, IA responded to the publishers’ complaint.

The answer described IA’s ‘Controlled Digital Lending’ (CDL) process in detail, highlighting the fact that the scanned books had already been paid for by the libraries that own them and the controlled nature of the lending meant that classic ‘fair use’ purposes such as preservation, access and research had been met.

In addition, IA cited the First Sale Doctrine and the safe harbor provisions of the DMCA as affirmative defenses.

Internet Archive Wants to Prove Its Library Did No Harm

With the case having been active for more than a year, the Internet Archive now wants the court to compel the publishers to hand over information. Specifically, IA wants access to sales data that shows the commercial performance of the plaintiffs’ book titles.

“In considering fair use, one factor courts consider is ‘the effect of the use upon the potential market for or value of the copyrighted work’,” IA’s legal team writes.

“Plaintiffs claim that the Internet Archive’s digital library lending has a negative effect on the market for or value of the works. The Internet Archive disagrees, and wishes to bring forward evidence showing that lending had little or no effect on the commercial performance of the books being lent, compared to books that were not lent.”

In order to show that its library did no harm, IA says it wants to compare the commercial performance of books that were available for digital download with books that were not available for digital lending. Thus far, however, the publishers haven’t been prepared to offer data, at least to the extent requested by IA.

Broad Request For Data Denied By Publishers

IA says that in order to show that lending didn’t negatively affect sales, it needs access to information that would show the commercial performance of all of the publishers’ books, broken down since 2011. However, IA says that thus far the publishers have refused to provide any data for books outside those detailed in the lawsuit, which is not enough according to IA.

“In order to argue that the challenged library lending practice did not affect commercial performance, one needs commercial performance data not only for the books that were lent out, but also of other books that were not loaned. Without that data, the Internet Archive has nothing to compare,” the letter to the court reads.

“Plaintiffs object that data about other books would be irrelevant. They have argued that, because there are too many other factors that could affect their commercial performance, the data won’t show whether the Internet Archive’s digital library lending affected commercial performance,” it continues.

“We have no doubt that Plaintiffs will press that line of argument in cross-examination of the Internet Archive’s witnesses, but such estimates are a necessary part of litigation about alleged copyright infringement.”

Publishers: Discovery Would Be Burdensome

According to IA’s letter, the publishers insist that producing data about all of their books would be unduly burdensome since there are only 127 books listed in the complaint. However, IA says that it doesn’t necessarily need every book to conduct a comparison and would be satisfied if the publishers provided data on each of those works and data on one or more comparable works that were not available for digital lending at the same time as those works.

It appears that is not acceptable to the publishers since they insist that all books are unique.

“[P]laintiffs, who are in possession of the data one would need to do that analysis, have declined to identify books they regard as comparable — because, as discussed above, they take the position that no book is comparable to any other book,” IA explains.

“Given this refusal, Plaintiffs must produce data about all books, so that the Internet Archive can identify books it regards as comparable, and the parties can then debate, on a level playing field, whether such books are or are not comparable.”

Finally, IA insists that the data to be supplied by the publishers should show monthly commercial performance data, not just annual data. Simply supplying annual data wouldn’t be enough, since IA wants to compare performance data before and after digital lending dates. In particular, IA wants to look at the commercial performance of books during the availability of its National Emergency Library.

The Internet Archive’s letter to the court can be found here (pdf)