Last week, Authors Alliance submitted an amicus brief in Hachette Book Group v. Internet Archive. You can learn more about the arguments we made in our brief in last week’s blog post. Authors Alliance was not the only amicus in this case—five other briefs were submitted by organizations and individuals that, like Authors Alliance, believe controlled digital lending (“CDL”) to be a fair use worthy of defending in court. In today’s post, we will provide an update on the case and an overview of other amici’s arguments. 

The Case

In June 2020, four of the largest publishers filed a lawsuit against the Internet Archive in the Southern District of New York, challenging, among other things, the legality of CDL. The case is currently before district court Judge John Koeltl. The case stretched on for over two years until both parties filed their motions for summary judgment in early July. A request for “summary judgment” is one where a party asks the court to rule on the case before a full trial, and is proper when no facts are in dispute. Summary judgment motions are fairly typical at this stage in a civil trial. 

On July 14th, six amicus briefs were filed by the following parties:

• Authors Alliance; 
• Library Futures Institute, together with EveryLibrary Institute and ReadersFirst;
• A group of copyright scholars led by law professor Jason Schultz;
• A group of intellectual property law professors led by law professor Rebecca Tushnet;
• Michelle Wu, former director of the Georgetown Law Library and someone deeply involved in the history of CDL;
• Kenneth Crews and Kevin Smith, both lawyers and librarians who have written and taught extensively on library copyright issues.

The next day, Judge Koeltl granted Authors Alliance’s motion to submit an amicus brief, as well as the other five amici’s motions to do the same. Later that day, the publishers filed an opposition to several of the amicus briefs, including ours, but this came after the judge had already granted the motions. 

We are pleased that Judge Koetl promptly agreed to allow us to submit an amicus brief in this case. Amicus briefs are useful when they can provide information or perspectives not offered by the parties in the case. We believe our brief will accomplish just that: we provided the court with information on the views and motivations of authors to show it that many authors do support CDL, contrary to the publishers’ argument that authors as a group are against CDL. While amicus briefs are not very common at the district court level (but more common in higher courts), the six separate briefs in this case show how many parties are deeply invested in CDL, and highlights the importance of this case for readers and authors going forward. 

Other Amicus Briefs

Library Futures Institute

The Library Futures Institute, along with groups the EveryLibrary Institute and ReadersFirst, submitted an amicus brief in the case representing the perspective of libraries. In its brief, Library Futures explained that CDL is an established practice employed by numerous public libraries across the country—it is far from unique to the Internet Archive. Library Futures further contextualized library lending historically: this is not the first time that publishers have been up in arms about changes in library practices, yet book publishing as an industry continues to thrive. CDL is also cost-effective for libraries and the taxpayers that support them, allowing libraries to make their collection more accessible and broadly available while making the most of the limited resources and physical storage libraries have. Library Futures also drew key distinctions between licensed ebooks and CDL scans: the two have different features and purposes, undermining the publishers’ argument that a CDL loan is a highly effective substitute for licensing an ebook. Instead, Library Futures argues that CDL bridges the gap between print and digital resources for researchers and readers, ensuring that libraries can serve their mission and readers can access books. 

Copyright Scholars

A group of 17 copyright scholars, led by NYU Law Professor Jason Schultz, submitted a brief to the court discussing the first sale doctrine, digital exhaustion, and library lending. In their brief, the copyright scholars explained that libraries have had a special place in our copyright scheme since time immemorial, and copyright permits libraries to lend books out in whatever manner they see fit. This fact, the copyright scholars argue, means that libraries should be able to loan out copies via CDL without publishers’ interference. This brief also argues that CDL is a fair use because of its nonprofit, socially productive purpose and the fact that it does not cause “market harms” for the purposes of fair use analysis. Because CDL enables libraries to do what they have always done—make their collections available to patrons and adapt to changes in technology—the copyright scholars argue it is consistent with fair use and with legal principles covering libraries’ operations. 

Intellectual Property Law Professors

A group of intellectual law professors, led by Harvard Law professor Rebecca Tushnet, also submitted a brief in this case to make the argument that the noncommercial and nonprofit status of CDL make it consistent with fair use. Tushnet explained how and why CDL is a noncommercial use and explained that fair use analysis favors such uses. Furthermore, this brief discusses how nonprofit library lending has historically received special treatment in the law because of libraries’ crucial role in supporting access to knowledge, freedom of speech, and a core purpose of copyright: to incentivize creation for the benefit of the public. Libraries help democratize information by ensuring broad audiences can access information, and CDL is simply a new way for libraries to fulfill this mission. 

Michelle Wu

Michelle Wu, a former law professor and former director of the law library at Georgetown, also submitted a brief in this case defending CDL. In her brief, Wu explains that CDL was designed to strike a balance between two competing interests:  granting authors exclusive rights and encouraging socially beneficial onward creation. She also discusses the broad range of ways in which CDL benefits libraries, and explains that the publishers’ proposed solution—that libraries must digitally license works—is inadequate to meet the needs of libraries and their patrons. Wu also explains that, regardless of the outcome of this particular case, the court should be extremely cautious about disrupting CDL as a general practice, because its contours, applications, and features vary across the different implementations of CDL. While the publishers behave as if CDL is a monolithic practice, it can vary substantially between institutions that implement it. 

Kenneth Crews and Kevin Smith

Library and information scholars and historians Kenneth Crews and Kevin Smith also submitted an amicus brief in this case, arguing that CDL is a natural extension of traditional library activities in supporting communities, broadening access to information, and facilitating civic engagement. In their brief, Crews and Smith contextualize the history of libraries in the U.S., and emphasize libraries’ role in ensuring public access to information and working towards a more egalitarian society. The brief also explains how and why CDL is the “logical and reasonable next step” for libraries as they adapt to meet the changing needs of their patrons. The digital age has brought on heightened inequality in access to information, making CDL lending by libraries more important than ever. 

What’s Next?

Following their motions for summary judgment, both the publishers and the Internet Archive filed letters asking the court to agree to grant oral argument, where the parties appear and make their case before the judge. No oral argument has been scheduled as of the date of this writing, though we will keep our readers apprised as this case moves forward. After briefing and arguments, the court has a few options. It could grant either side’s motions in whole or in part. The court could also conclude that important facts actually are in dispute, in which case a full trial may be scheduled. Once there has been a decision in a case, there is always the possibility that either party could appeal the ruling by asking the Second Circuit (the relevant court of appeals) to reconsider Judge Koeltl’s decision.