Read the Internet Archive Injunction Order here.

Sara: Welcome to another episode of copyright chat. It’s been a minute I’ve been on Sabbatical. I’ve been traveling to Geneva, working at the World intellectual property organization on some research. So, welcome back, we have a very exciting episode talking about the Internet Archive litigation with Jonathan Band from policy bandwidth. He is a renowned lawyer in intellectual property and policy out of Washington, DC. His views are his own. Nothing in this podcast, should be taken as legal advice, of course. But welcome, Jonathan.

 

Jonathan: Thanks for having me.

 

Sara: I would think, since this litigation has been pending for quite some time that most of our listeners are familiar with it. But we can go through a little bit of background. So the Internet Archive was sued by authors and publishers, because, largely as I understand it, because of the emergency lending during Covid. Is that your understanding, too? I mean, that’s what prompted the suit

 

 

Jonathan: The suit initially was filed right after the Internet Archive announced the National Emergency Library early in the pandemic. But very quickly, as you know, with the pleadings and sort of look looking at where the decision ended up. The decision hardly focused on the National Emergency Library at all that just got a paragraph in the decision. It was really focusing on the controlled digital lending under the Internet archives open library. So it could be that that the National Emergency Library is what really got the publishers’ attention and that’s what prompted the filing of the lawsuit. But the case ended up being about the open library more generally. And what’s interesting about that is that that was not new. I mean, the Internet Archive has been doing, lending through the open library for a while. So you know I’m sure at some point in the future we’ll sort of look back and try to figure out. You know why. what prompted it, and why and why did they not sue about the open library earlier? But that’s, you know, not completely relevant to today’s discussion.

 

Sara: Yeah, I also think that’s interesting, because my own take on it, maybe not accurate, but my own take on it was that the authors got mad because they were. They kind of. They kind of went a little excessive, I guess, in the emergency library, saying, Well, we’re gonna lend more than maybe one to one. Well, and they claimed usually to be lending older books. Maybe 5 years past publication date, but they threw a few newer books in there by mistake. I understand it was kind of not intentional on behalf of Internet Archive, and that was what kind of perked the ears up of the authors and the publishers. But yes, I mean, the case is broader than just the emergency. Library, which I think is important, because some libraries such as my own, were engaging in controlled digital lending through the Hathi Trust during covid, because we couldn’t let people in the doors. We had a pretty justifiable, I think, reason, and the fact that they brought in this lawsuit up probably made it harder on the side of the Internet Archive to justify what they were doing. I don’t know. Maybe that’s my own, my own conclusion there. But the outcome, as we know which recently happened, was an injunction that told the Internet Archive, as far as I understand it, to stop doing CDL. Essentially, for now.

 

Jonathan: right well, it’s a little more. Let’s fine tune that a bit. So first of all, what happened is, you know, the lawsuit was initially filed back in 2020 when the National Emergency Library was opened. And then again, as I said, it sort of morphed into this focus on controlled digital lending by the open library. More generally. The judge issued a decision in in March of this year. So March 2023, basically saying that the open libraries controlled digital lending with respect to 127 books at issue in the case. So that was the 127 books identified by the publishers hashed, and the other publishers involved in the litigation. You know that that it was not fair use for Internet Archive to distribute those titles through its open lending. It’s open library project in a controlled digital lending manner. Then the court said, Okay, now, parties, you figure out what happens next in this litigation, how we should proceed, what the order would excuse me, what remedies should look like and conceivably there could have been an additional a trial over damages there could have been a trial over saying, you know, or what about other books beyond these 127. But instead, what happened is, the parties started talking to each other, and they negotiated. And they basically they were negotiating, negotiating the judge. You know, the judge initially wanted them to, you know, come back with a proposal within a couple of weeks, and they kept on asking for an extension, and the judge gave them extension after extension after extension, and finally, a. At the end of July, the judge said, no more. You guys decide. You know you have to do something within 2 weeks, or else you know, I’m gonna do it. And so then within 2 weeks the parties came up with a proposed injunction. So they basically came up with a draft injunction, a proposed injunction that the court then approved. Now the injunction, basically said that Internet Archive and its partners, which include some libraries that were working with the Internet Archive would no longer reproduce or distribute  covered books, and we’ll get back to that in a minute. Covered books through the open library. And then the question became. What is the meaning of the term covered books. and that’s where the parties had a disagreement, and presumably that’s what’s been. Why, there was all this delay, you know. It could be that they agreed pretty much early on on most of the contours of the injunction, but that they couldn’t agree on covered books and covered books. The Internet Archive said covered books should just be books by these publishers issued by these publishers that are available in ebook form. Yeah, you know, sort of commercially through overdrive or through Amazon, kindle, but they have to be again available in ebook form. The publishers, on the other hand, were saying, No, no, no! Covered books should be any book that we publish or have published. You know I don’t think there was. I don’t think they were saying it necessarily needs to be in print. I figured I don’t 100% remember. But it basically, the issue is, is it ebooks which are sort of currently available or books, general and so they submitted that question to the judge and the judge very quickly. Within a day, or actually over a weekend, the judge said, Okay, covered books means ebooks. Because you know what the Internet Archive argued, is, that this whole case has been about ebooks, and the fact that you know, the publisher said. It’s not fair use because we are selling these ebooks. We’re making these available now in ebook form, and the open library competes directly with the ebook market. So the case is about ebooks. And so, and the judge agreed that this case was all about ebooks and the harm to the ebook market. And you know, because that’s what the case was about. The injunction can’t be any broader than that. Can’t talk about books generally. And so the injunction covers ebooks. But interestingly, it’s not just this 100 727 titles. It’s sort of any book that these publishers publish in ebook format. And they’re supposed to provide Internet Archive a list of their titles. And they will. And then the Internet Archive is supposed to pull those out of the open library. It doesn’t seem that it has to be titles that are now available in ebook. It could be if the publishers make other titles available in ebook sort of like their backlist. That’s currently not ebook that they can make them available as ebooks. And at that point, Internet Archive needs to pull those out. Even though this injunction just covers these publishers, there is sort of like the side letter where the Internet Archive. I don’t know if that side letter has been made available. But, the way it’s been described is that in in in press releases is that other members of the Association of American Publishers who sort of like were behind this litigation if they want to sort of opt into this deal. They can do that, too. And I’m not 100% sure but what the you know to what extent the Internet Archive is committed, but it’s sort of like if they don’t do it, then they’ll get sued, and you know they would have to do it, at least again, with respect to the ebooks. So that’s that’s the the basic framework of the injunction.

 

Sara: Yeah. So for those folks listening who are not lawyers. Injunction really means stop. You are being ordered to stop doing this. If you don’t. If you violate that I’m assuming you’re gonna get damages imposed against you.

 

Jonathan: Well, yeah, yeah, you’d be right. You’d be held in contempt. And in this case, yeah, damage. Or you know, you’d be fines would be imposed. You know. I suppose if it’s sometimes with criminal contempt, you could go to jail, but I don’t think that would happen here. There’s no reason to believe that Internet Archive won’t just comply. And you know, pull those titles. Yeah.

 

Sara: And also, as you pointed out, the one important factor is, it’s a consent injunction. So you know, the parties did agree to this injunction. Then the judge signed off on it. So yes, I don’t think there’s any. There would be no reason they would be doing it intentionally. There might be an accidental thing that happens. So you answered a lot of the questions like, I think this gives the publishers an incentive to start making more ebooks, would you think.

 

Jonathan: Yes. In in theory it you know, some of their back list that is currently not available in ebook format. They might make available.

But there’s also the question as to why they haven’t done that till this point. It could be that they just don’t see any market at all for those titles. It could also be and this is kinda like the the dirty secret here is that they don’t know if they have the rights to make those titles available. You know older titles, you know the publisher agreement. You know. The agreement between the publisher and the author may have simply been that the author, the publisher, has the right to publish it in physical form, you know, because that’s the technology that was known at the time, you know, in the 1970 s. Or 1960S. You know, these are big publishers, and they have you know.

Lots of books, but it could, very well be for those older titles. Either the author actually has the electronic rights not the publisher, or it could be that it’s unclear. No one knows because the agreement is silent on that, or it’s unambiguous on that. And, more importantly, it could be. No one has a copy of the publishers Agreement. I mean, these are the kinds of issues that came up in the context of the Google Books case. You know, about 10-15 years ago. And you know it was discovered there was a huge area of ambiguity. I mean, there’s all. There were many cases where simply was unclear who has the right to digitize those books. and again, with older books. To some extent, no one really cares. There’s no market for it. And so that’s why you know, you know the pub. But but it’s certainly, you know. Let’s say post 1990 or post 2000. It’s all clear. Publishers made sure they had the agreement or made sure, the publishers agreement said who had the rights. But it could be that the publishers have already made available in ebooks all the books that they really care about, and that they really intend. or the all the books that they have the rights to, and that the other stuff they really don’t have the rights to. Or, you know again, from a lot of those titles that are in the back list, they really might not have the rights. And it’s unclear who does.

 

Sara: Oh, that’s a really good point, and, as we both know, tracking down who owns the rights is never fun, especially if someone who wrote the book, the author, is deceased. Then you’re really just looking down the family tree. And then are they gonna get into some sort of bidding war with, you know. some kid who wants a big payout because their dad wrote some big book, and really no one wants to read it. You know. I mean, there is a reason some of these books are not available in ebooks, and a lot of the books that are currently lent through controlled digital lending. At least in my experience with orphan works again. We just really don’t even know who owns it. Maybe the publisher even went out of business. I mean, this is not for these books cause they obviously know that they publish them. But they, you know, controlled digital lending the aim is not, to, you know take a new release and start making copies of it right the aim generally is to get some books that are not available online to readers and on a one to one basis. What is the take away here? I mean this case isn’t over right. I think it’s going to be appealed right?

 

Jonathan: It’s set forth in the order that the Internet Archive does not wave its right to appeal. And so one can safely assume that within the next, in the very near future they will appeal the case to the second circuit. And so you know the brief a lot of briefing likely will happen this fall. But the second circuit is not the known for making decisions quickly. And so, once the case is submitted. Once you know the briefings done, and they have the oral argument, you know. Again, it could take a while to schedule that that could be, you know, into next year, and then, you know. There could easily be a year, 2 years. It could take a while for them to get around to issuing a decision, particularly when there’s a consent injunction, right? Cause. It’s you know, the parties have agreed to this injunction, so that to some extent, you know, sort of signals to the court. Well, the parties can live with this injunction can live with this kind of status quo, and you know there’s no urgency to make a decision so we wouldn’t. You know it could be 2025, late 2025, or into 2026, before we have a decision out of the second circuit in this case, on the other, I mean, it could be that they see this is an easy case and decided very quickly.. Unlike the Supreme court, which you know, decides all of its cases each term, you know they move along the courts of appeal don’t have that same urgency, and so again, that it could happen very quickly, or they could take their time about it.

 

Sara: They also don’t have any say in whether they take the case. They have to take the case. I mean, I think it’s an interesting question. If the second circuit does take the case, I mean, once they make their decision sorry they don’t have a choice once they make their decision, if it it’s the decision, is against the Internet Archive, and they decide to, and it gets appealed, or against the other. Either party could appeal to the Supreme Court. Would the Supreme Court care about this case? I mean, they just decided a big copyright case. So maybe it was a second case. That would be a very interesting question.

 

Jonathan: I mean, you’re exactly right. After the second surface decision the losing side could petition for cert to the to the Supreme Court. And the Supreme Court. Yeah, I mean, it’s up to the you know. They have the choice whether they accept the case or not. I think it would be kind of an interesting case at that point for them, maybe. It would probably be more interesting if the Internet Archive wins in the second circuit. Right? Then that would be yeah. I would think that that would be more attractive. But if they lose at the second circuit. you know. Then then that’s a less interesting case, because it’s sort of say, well, you know. Okay, well, whatever they did, they did went too far. And so we don’t need to look at what are the limits. But if you know, I think I think the likelihood of the Court Supreme, we’re branding. Cert is greater ifthe Internet Archive prevails on appeal. One of the thing is, you know it’s pretty clear the publishers are not happy with the fact that the judge limited the injunction just or interpreted, covered books to apply just to ebooks, and it, could they? They could very well cross appeal. I mean, they could appeal that even though that’s kinda hard cause, you know the standard, for that would be an abuse of discretion, you know. So I think that that’s unlikely. You know that that, you know, cause why, you know it would be. It would sort of unnecessarily antagonize the judge, and I think, the judge. The reasoning of the judge is pretty solid that, you know. All the evidence was about the ebook market, and so you know and if he and and if he had a gone and applied, had covered books, applied all books that would have been you know better. You know that that would have been more likely an abuse of discretion that the Court of appeals would have reversed on a you know, the second separate would have reversed so so, and then even it’s you know a lot of things. It can go a lot of different ways going forward right?

 

Sara: And so to be clear, this case did not tell the Internet Archive. You have to stop using controlled digital lending as a method to reach readers. It told them you have to stop lending these particular titles in ebook or titles that might become available in ebook if they make them available in ebook by these publishers. Right?

 

Jonathan: And again, yes, and so that that does leave, you know, it certainly is all other publishers. Sort of out of litigation, even though there is a side letter that might bring publishers that are members of the AAP. And again it does leave all the non ebooks out. So that’s right. I mean it. It is somewhat limited in that sense. And it is different. And it doesn’t apply to you know, a lot of the kinds of controlled digital lending that various libraries are doing. Certainly the kind of stuff that Hathi Trust is doing. You know, which, again, is much more circumscribed. and you know it also left out. You know things, you know, relating to sort of anything that that is similar to recent case law. So, for example, the, you know, the Authors Guild versus Hathi Trust, and the author’s Guild versus Google books and Warhol. I mean, it is actually the consent injunction order specifically cited. Those is the kind of thing that is not, you know. Like, when the yeah, this injunction about what say, oh, you can’t make these reproductions, but you could conceivably make reproductions that are consistent with those decisions. And so that that does give. Certainly, you know folks a lot of leeway, even if they’re not in part of this case and sort of say, well, what am I safe doing until you know, for the next couple of years until we have a resolution of this case. It gives a lot of guidance.

 

Sara: Yeah, exactly. So. I think some folks, I’m sure people who are in engaged in CDL in their libraries are thinking what’s my take away right? I’m not in the jurisdiction of this court right? I mean, you know, I’m not a party to this lawsuit. But it’s still helpful. It’s still provides some guidance. Right? So if you are trying to engage in. CDL, and you’re trying to lend a book that is available in ebook format. That’d be more risky, let’s say, than, if you had a book that was older, not available in ebook, you know, maybe even an orphan work that kind of a thing. And so I think it’s still good guidance and even better guidance, probably, if the second circuit affirmed right? Because then it’s like, Okay, well, the circuit courts tend to follow each other. Look at each other, and like I’m in the seventh circuit, for instance you know, II know the second circuit doesn’t bind what we do at University of Illinois. But if the second circuit is leaning certain way, I’m gonna think. Hmm. That’s probably pretty good guidance. Right?

 

Jonathan: Yeah, absolutely. But one can’t overstate the case. So you could certainly say that. Let’s say the second circuit affirms the District Court. And you know also with the you know, that makes it clear that this is just about ebooks. Then that could say, then then an institution could say, Okay, we’re pretty, you know. We feel somewhat degree of confidence that if we or we know that if we engage in CDL for books that are currently available as ebooks. That’s probably you know, a red zone right? That that that raises flags that might be dangerous. You don’t necessarily know that if it’s not an ebook that you’re in the clear, all you know is that if it’s not an ebook, this case doesn’t say anything about it. So it could be. You know, the language of the second circuit, what it’s not deciding could be important. Then it would basically leave existing fair use jurisprudence and people’s judgment, and certainly say, Well, okay, if it’s an older title, an orphan work. That’s pretty. Okay, you know. But what about? If it’s not that old, the title? Let’s say it’s you know, book in the eighties. Right? And you know, the author is still alive. Is that okay? Unclear, you know. But I’m not sure I think right now, even before the decision, I think a lot of University council. say now that it’s not. That’s already a little too risky, and would say when I was gotta be, you know, before a certain date, or you know something else, you know something. The eighties might be a little too recent, especially if you know if it’s from a real university press or a real publishing house that might not be making the whole title available, and again. But you know it could be that the real question coming forward is, you know, you can imagine all kinds of litigation. As people try to refine what’s okay and what isn’t. Okay. I suspect there probably won’t be a lot because it’s just not worth it to the publishers. I mean, I think, that they felt that the Internet Archive, especially once, you know, when it when it had the National Emergency library. That was just kinda like, just too far. It just couldn’t tolerate that. And then once they started litigating, they realize, well, wait a minute. We can’t say that CDL is okay. But the National Emergency Library isn’t right. I mean they couldn’t. I don’t think they felt they could make that kind of concession. Maybe they felt sort of backed into a corner, that, you know, because  the Internet Archive gun. So far they felt they needed to say, Okay, no, you know no to CDL, at least in these circumstances. But I think you know part of it is clear, and all the pleadings they really don’t like the Internet Archive generally. I mean, they feel that the Internet and it could be the Internet Archive, maybe sort of poke the bear too many times from their point of view. And if you change the facts enough, and if it’s University of Illinois Library, and it’s you know, maybe maybe it is books from the seventies and eighties, but you know the university can put together a rationale that not only is it trying to make these titles more available. It has all sorts of statistics that no one has checked this book out in 15 years or 20 years, which is often the case. and they could also talk about the this host. The whole CDL thing is also part of the rationale is managing its collection, managing its space. It doesn’t have enough room to hold all of these books. It could come up with various rationales that then that might tip the balance, and that would be the reasoning would be different.It could make arguments that the Internet Archive couldn’t make. But I have a feeling no one’s gonna litigate that. So I just don’t think so. I think libraries will be careful and you know, sort of like. Let’s say, when they are in books, you know, titles that are in the 80 s. Or whatever they’ll be very selective about what they do and do, and it would be, let’s say, a title that has not been circulated in 20 years or 40 years. Right? And I’m sure you have titles like that. On the other hand, litigation is really expensive, and it seems that there was a side agreement here where the Internet Archive is gonna pay the publishers’ legal fees, but nothing else, no damages. It’s sort of like reading between the lines that seem seems to be what the situation is, but litigation is really expensive. From their point of view, they’re not gonna bother. So there’s gonna be. I think there’ll still be a lot of ambiguity. There’ll be a big grey zone. And because even the publishers and the authors, guild and other groups, you know. It’s certainly in private conversations and say, Oh, we have no problem with orphan works.you know. But of course, their definition of an orphan work might be different from our definition of an orphan work. Right? So so there’s going to be, you know, certain areas where it’s going to be very safe, certain areas where it’s gonna be pretty risky. And then there’s going to be this big gray area in the middle. And I think that that’s, gonna you know, continue to pose a challenge for libraries. And again, all this is assuming that the second circuit affirms, if they reverse it’s obviously very different.

 

Sara: Right. And in terms of the super risky. You know. To me that is always the textbook situation. People say, Oh, I want to put this textbook through. Cdl, what? No, please don’t do that, because textbooks are such a such a small market. Right? I mean, you have a calculus, 101 textbook that’s really just for those students. I’m not gonna read that textbook. That’s not for just anybody that’s for a very small market. On the other hand, don’t even get me started about the price of textbooks. Because.

 

Jonathan: yeah, I mean, you know, making textbooks available would be problem unless again, you know it. It. It’s let’s say it’s an older textbook that no one is using in courses anymore. So let’s say, you know, the second edition of you know Samuelson Economics. And now there’s probably up to the thirtieth edition, right? I mean so an older edition, where the only person who would be looking at it would be a scholar, right? I mean. So I think in every case you could sort of make general generalizations. But even then, I think there could be is situ circumstances. Under which sort of saying, Yeah, making the third edition of the Samuelson Economics textbook is on a CDL basis is fair use. That’s a good point. Yeah, I could see a historical analysis of a textbook that’s really old would be a very different thing than something like Samuelson, which has been the bedrock of economics courses. Again, since you know, since long before I took economics. So it’s been around. That textbook has probably been around for 50 years or more, you know, and sort of seeing how it’s evolved. That seems like a good research, you know. topic for a doctoral dissertation, if it hasn’t already been done.

 

Sara: Yeah. So it’s just another way to say that, you know fair use is flexible, and you really can’t just put a line in the sand I just tried to put a line in the sand. Didn’t work right?

 

Jonathan: That’s right. That’s why it’s, you know, that is the beauty and the frustration of fair use.

 

Sara: The beauty. I think it’s beautiful. I think it’s a good thing right? It’s it gets frustrating for people in their day to day work. They want these hard line rules, but, on the other hand, it allows us to do things and be flexible in ways that counterparts across the world who don’t have fair use, cannot do it. And so, you know, we also then have to keep up on all the fair use decisions. So we can understand what the courts are saying about it, which is a whole other thing. Well, I hope, I hope, in terms of keeping up on the decisions. I hope that this discussion. I know it’s been really enlightening for me, Jonathan, you have such a bird eye view of what’s been going on. Much more nuanced than my understanding. So thank you so much, and I hope it’s been helpful to listeners. I’m sure it has. I mean, it’s just been so interesting to listen to your thoughts about this case, and it’s not over yet. But at least this is something that will be probably in place for a while right while the appeal is pending. So it’s good to understand where we are now. And where we’re headed. Yeah. Well, thanks so much for joining me today, Jonathan.

Jonathan: It was really nice talking to you.