On Friday, August 12, 2022, the Authors Guild filed an amicus brief in Hachette v. Internet Archive, the publishers’ lawsuit against Internet Archive’s unauthorized scanning and distribution of books through the Open Library platform. More than 20 other organizations representing U.S. and foreign writers, genres, photographers, and playwrights signed on.
The “friend of the court” brief, submitted in the United States District Court for the Southern District of New York, explains the many ways in which Open Library harms authors and the serious consequences that would follow if Internet Archive’s practices were upheld.
The brief explains that Internet Archive’s scanning and distribution of entire books is infringing, and it is not fair use under any copyright law theory. Making copies of copyrighted work, including in different formats, and providing copies to third parties, all without authorization of the copyright owner—as Internet Archive is doing with its Open Library project—is precisely what copyright law protects against, and for good reason. If third parties are allowed to make copies of books, in any format, and sell or give the copies away without permission, those free copies compete with the author’s and make it impossible for an author to earn income from the books. For trade book authors, that means they need to take on other income-producing work and have no financial incentives to publish.
The brief cautions the court that allowing Internet Archive’s practices to continue and others to do the same (as would be the case if Internet Archives prevails) would have devastating effects on the markets that authors rely on for their incomes. First, any entity calling itself a library could simply scan physical books instead of purchasing e-book licenses as they do now. Authors receive a share (generally 25%) of those sales. The easy availability of free e-book copies through a simple Google search would also hurt the consumer e-book market and disincentivize readers from buying licensed e-books.
In addition, the brief urges the court to consider the effects on back in print and reuse markets, the existence of which Internet Archive completely ignores, even though these markets are crucial for most authors today. The brief quotes authors on the importance of reissue income, including how it has helped them meet critical financial obligations such as healthcare. Authors reported making $8-10,000 or more per year just from self-published reissues, but the salient point is that even a few hundred dollars per year from back in print uses can be consequential, especially when the median income of full-time authors is $20,300 per year. Displacement of a single licensed sale by unauthorized copies—like Internet Archive’s “e-books”—is magnified because the back in print market is small and a lost sale cannot be made up for in aggregate volume.
We are confident that our arguments will have an influence in convincing the court to stop Internet Archive’s clearly infringing practices.
Read the full brief below.