Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 1 of 53

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK----------------------------------------x
HACHETTE BOOK GROUP, INC.,
HARPERCOLLINS PUBLISHERS LLC, JOHNWILEY & SONS, INC., and PENGUIN RANDOM
HOUSE LLC,
Plaintiffs,::

20 Civ. _____________:ECF Case:-against-:

COMPLAINT:TRIAL BY JURY DEMANDED:INTERNET ARCHIVE and DOES 1 through 5,
inclusive,::

Defendants.
------------------------------------------x

Plaintiffs Hachette Book Group, Inc. (“Hachette”), HarperCollins Publishers LLC(“HarperCollins”), John Wiley & Sons, Inc. (“Wiley”), and Penguin Random House LLC(“Penguin Random House”), by and through their attorneys Davis Wright Tremaine LLP and
Oppenheim + Zebrak, LLP, for their Complaint, hereby allege against Defendant Internet
Archive (“IA” or “Defendant”) and Does 1 through 5 as follows:
NATURE OF THE ACTION
1.

Plaintiffs Hachette, HarperCollins, Penguin Random House, and Wiley(collectively, “Plaintiffs” or “Publishers”) bring this copyright infringement action against IA inconnection with website operations it markets to the public as “Open Library” and/or “National
Emergency Library.” Plaintiffs are four of the world’s preeminent publishing houses.
Collectively, they publish some of the most successful and leading authors in the world,
investing in a wide range of fiction and nonfiction books for the benefit of readers everywhere.
All of the Plaintiffs are member companies of the Association of American Publishers, themission of which is to be the voice of American publishing on matters of law and public policy.
1Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 2 of 53

2.

Defendant IA is engaged in willful mass copyright infringement. Without any

license or any payment to authors or publishers, IA scans print books, uploads these illegallyscanned books to its servers, and distributes verbatim digital copies of the books in whole via
public-facing websites. With just a few clicks, any Internet-connected user can download
complete digital copies of in-copyright books from Defendant.
3.

The scale of IA’s scheme is astonishing: At its “Open Library,” located atwww.openlibrary.org and www.archive.org (together, the “Website”), IA currently distributes
digital scanned copies of over 1.3 million books. And its stated goal is to do so for millions
more, essentially distributing free digital copies of every book ever written. Despite the “Open
Library” moniker, IA’s actions grossly exceed legitimate library services, do violence to the
Copyright Act, and constitute willful digital piracy on an industrial scale. Consistent with the
deplorable nature of piracy, IA’s infringement is intentional and systematic: it produces mirrorimage copies of millions of unaltered in-copyright works for which it has no rights anddistributes them in their entirety for reading purposes to the public for free, including
voluminous numbers of books that are currently commercially available.
4.

Books have long been essential to our society. Fiction and non-fiction alike, theytransport us to new worlds, broaden our horizons, provide us with perspective, reflect the evergrowing knowledge of humanity in every field, spark our imaginations and deepen our
understanding of the world. Yet, books are not self-generating. They are the product of training
and study, talent and grit, perseverance and creativity, investment and risk, and untold hours of
work.
5.

The publishing ecosystem not only depends upon copyright law, it is historicallyintertwined with the founding of the United States. In 1787, the Framers adopted the Copyright2

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 3 of 53

Clause of the Constitution, explicitly authorizing Congress “[t]o promote the Progress of Scienceand useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right totheir respective Writings and Discoveries.” U.S. Const., Art. I, §8, cl. 8. In 1790, the First
Congress enacted the first Copyright Act, focused on incentivizing both the creation and legal
dissemination of books, maps, and charts. Congresses ever since have carefully balanced
copyright amendments to advance the public good and for more than 200 years have prescribedto authors a suite of enforceable exclusive rights to their writings—which publishers, in turn,
encourage, invest in, license, and distribute to readers through bookstores, libraries, and amultitude of e-commerce platforms. In this process of publishing books that educate, entertain,
and inspire the public, publishers rely not only on the exclusive rights that are their lifeblood, buton the expectation that Congress has carefully considered and appropriately tailored any
limitations and exceptions to said rights.
6.

IA not only acts entirely outside any legal framework, it does so flagrantly andfraudulently. And it proceeds despite actual notice that its actions constitute infringement. For
the avoidance of doubt, this lawsuit is not about the occasional transmission of a title underappropriately limited circumstances, nor about anything permissioned or in the public domain.
On the contrary, it is about IA’s purposeful collection of truckloads of in-copyright books toscan, reproduce, and then distribute digital bootleg versions online. IA’s Website includes booksof every stripe—from bestsellers to scholarly monographs, from entertaining thrillers andromances to literary fiction, from self-help books to biographies, from children’s books to adultbooks. IA often suggests that the Website is limited to twentieth-century books, but this isneither accurate nor a defense. IA scans, uploads, and distributes huge numbers of in-copyrightbooks published in both the twentieth and twenty-first centuries, including many books

3

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 4 of 53

published within just the past few years. IA’s unauthorized copying and distribution of
Plaintiffs’ works include titles that the Publishers are currently selling commercially andcurrently providing to libraries in ebook form, making Defendant’s business a direct substitutefor established markets. Free is an insurmountable competitor.
7.

Publishers have long supported public libraries, recognizing the significant

benefits to the public of ready access to books and other publications. This partnership turns
upon a well-developed and longstanding library market, through which public libraries buy print
books and license ebooks (or agree to terms of sale for ebooks) from publishers, usually via bookwholesalers or library ebook aggregators. IA’s activities are nothing like those of public
libraries, but rather the kind of quintessential infringement that the Copyright Act directly
prohibits. Moreover, while Defendant promotes its non-profit status, it is in fact a highly
commercial enterprise with millions of dollars of annual revenues, including financial schemesthat provide funding for IA’s infringing activities. By branding itself with the name “Open
Library,” it thus badly misleads the public and boldly misappropriates the goodwill that libraries
enjoy and have legitimately earned.
8.

IA defends its willful mass infringement by asserting an invented theory called“Controlled Digital Lending” (“CDL”)—the rules of which have been concocted from whole
cloth and continue to get worse. For example, at first, under this theory IA claimed to limit the
number of scanned copies of a title available for free download at any one time to the number ofprint books of that title in its collection—though no provision under copyright law offers acolorable defense to the systematic copying and distribution of digital book files simply because
the actor collects corresponding physical copies. Then, in the face of the COVID-19 pandemic,
IA opportunistically seized upon the global health crisis to further enlarge its cause, announcing

4Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 5 of 53

with great fanfare that it would remove these already deficient limitations that were purportedly
in place. Today, IA offers an enormous universe of scanned books to an unlimited number ofindividuals simultaneously in its “National Emergency Library.” IA’s blatant, willful
infringement is all the more egregious for its timing, which comes at the very moment that many
authors, publishers, and independent bookstores, not to mention libraries, are both struggling tosurvive amidst economic uncertainty and planning deliberatively for future, changing markets.
9.

Under whatever guise IA attempts to frame its massive infringement—whether

adopting the invented CDL theory or filling the self-appointed role as “National Emergency
Library”—its actions find no support in the Copyright Act. IA’s defenses of its actions—both
before and after the onset of the COVID-19 crisis—are baseless. First, while IA claims to serve
an educational purpose, education has long been a primary mission and market of publishers. It
is authors and publishers who create the books of scholarship and literature for educators,
students, and other readers; IA creates nothing. IA plays no role in the hard work of researching,writing, or publishing the works or, for that matter, in creating or sustaining the overallpublishing ecosystem and its distinct partnerships and markets. Nor does IA contribute to theunderlying scholarship through commentary or criticism. Moreover, IA’s massive bookdigitization business has no new purpose that is fundamentally different than that of the
Publishers: both distribute entire books for reading. In short, Defendant merely exploits theinvestments that publishers have made in their books, and it does so through a business modelthat is designed to free-ride on the work of others. Defendant pays for none of the expenses that
go into publishing a book and is nothing more than a mass copier and distributor of bootleg
works. In so doing, IA undermines the balance and promise of copyright law by usurping the5Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 6 of 53

Publishers’ ability to license and sell the books that they have lawfully produced on behalf ofauthors and for the benefit of readers.
10.

IA’s self-serving assertion and promotion of “Controlled Digital Lending” asboth an actual legal doctrine and a justification for its infringement affronts the most basic
realities of the law and the markets it propels. As a matter of markets, IA’s one-to-one
conflation of print and ebooks is fundamentally flawed. Digital books are inherently different
from physical books. They can fly around the world in a second; they do not degrade over time
as physical books do; and they require devices to read them. For these reasons, the Publishers
have established independent and distinct distribution models for ebooks, including a market for
lending ebooks through libraries, which are governed by different terms and expectations thanprint books. IA’s end-run around these differences and restrictions is aggressive and unlawful.
In short, all of the reasons why IA has scanned print books to create digital files are the verysame reasons why authors and publishers provide digital books under different terms than print
books—as they are entitled to do under the Copyright Act.
11.

No concept of fair use supports the systematic mass copying or distribution ofentire books for the purpose of mass reading, or put another way, for the purpose of providing toreaders the very thing that publishers and authors provide in the first place through lawful andestablished channels. IA does not add something new to the Plaintiffs’ books, with a different
purpose or character; thus, it cannot even begin to make the all-important showing that its use of
the works is transformative. Separately, Section 109 of the Copyright Act is clear that, pursuant
to the doctrine of first sale, the owner of a lawfully acquired print book may dispose only ofher/his particular print copy. One who makes and distributes reproductions of that physicalcopy—such as IA’s low quality scans—is well outside the bounds of the law.

6

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 7 of 53

12.

Nor do IA’s efforts to brand itself as a library somehow imbue it with any right todigitize and distribute unauthorized digital copies of books. Libraries are trusted institutions thatserve the communities that fund them. When Congress contemplated the making of digitalcopies by libraries under 17 U.S.C. §108, it engaged all relevant stakeholders and created a set of
rational, targeted exceptions to infringement liability—exceptions that have no application toIA’s actions. As the Copyright Office observed in a relevant public study titled “Legal Issues in
Mass Digitization” (October 2011), “The Section 108 exception does not contemplate massdigitization.”
13.

The creation, publication, and distribution of books is an ecosystem. IA

disaggregates itself from this ecosystem, ignores the law, and asserts that its goal of providing
free copies of books somehow excuses it from any responsibility to those who have created theworks and hold exclusive rights under the Copyright Act. Its goal of creating digital copies ofbooks and providing them to whomever wants to download them reflects a profoundmisunderstanding of the costs of creating books, a profound lack of respect for the many
contributors involved in the publication process, and a profound disregard of the boundaries andbalance of core copyright principles. IA does not seek to “free knowledge”; it seeks to destroy
the carefully calibrated ecosystem that makes books possible in the first place—and toundermine the copyright law that stands in its way.
14.

In sum, IA’s massive taking violates the Plaintiffs’ exclusive rights under 17

U.S.C §106. Plaintiffs bring this action to halt IA’s assault on their rights.
THE PARTIESA.

Plaintiffs

15.

Plaintiffs are four of the leading book publishers in the United States. Working

closely with their authors, Plaintiffs source, develop, edit, publish, market, and distribute tens of7

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 8 of 53

thousands of books per year, across the full spectrum of genres and topics.
16.

Plaintiff Hachette is a publishing company, organized under the laws ofDelaware, with its principal place of business at 1290 Sixth Avenue, New York, NY 10104.
With a history stretching back to 1837, Hachette works with bestselling authors who have been
published all over the world. Hachette books and authors have won Pulitzer Prizes, National
Book Awards, Newbery Medals, Caldecott Medals, and Nobel Prizes. Its many publishing
imprints include prominent brands such as Little, Brown and Company, Little, Brown Books for
Young Readers, Grand Central Publishing, Basic Books, Public Affairs, Orbit, FaithWords andCenter Street.
17.

Plaintiff HarperCollins is a publishing company, organized under the laws ofDelaware, with its principal place of business at 195 Broadway, New York, NY 10007.
HarperCollins has more than 200 years of history in the book publishing industry and thecompany now operates more than 120 imprints and brands in 17 countries worldwide. Each
year, HarperCollins publishes approximately 10,000 new books in more than a dozen languages
and boasts a catalogue of more than 200,000 titles in print and digital formats. Working across awide range of genres, authors published by HarperCollins have won the Nobel Prize, the Pulitzer
Prize, the National Book Award, the Newbery and Caldecott Medals, and the Man Booker Prize,
among other honors.
18.

Plaintiff Penguin Random House is a publishing company, organized under thelaws of Delaware, with its principal place of business at 1745 Broadway, New York, NY 10019.
Penguin Random House can trace its history back to the mid-nineteenth century and one of its
progenitors, Random House, published the first authorized edition of James Joyce’s Ulysses inthe English-speaking world, among other landmark titles. The portfolio operated by Penguin

8Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 9 of 53

Random House has grown to encompass nearly 275 independent imprints and brands across fivecontinents. Penguin Random House publishes 15,000 new titles per year—catering to readers of
all ages and at every stage of life—and sells close to 800 million print books, audiobooks, andebooks annually. It has published hundreds of the most widely read authors in the world.
19.

Plaintiff Wiley is a publishing company, organized under the laws of New York,with its principal place of business at 111 River Street, Hoboken, NJ 07030. Founded in 1807,
Wiley has over 200 years of experience publishing scientific, professional, and education books
and journals in print and digital formats. Wiley has published works by over 450 Nobel
Laureates. It publishes over 2,000 new books each year and currently offers over 120,000 titles.
20.

Plaintiffs are the copyright owners or owners of exclusive rights under copyrightin, inter alia, each of the works listed in Exhibit A (the “Works”), on which they bring suit here.
Exhibit A is an illustrative, non-exhaustive list of in-copyright works that Defendant(s) infringed
through the activities complained of herein. Upon information and belief, all of the Works havebeen scanned and uploaded to the Website by IA. All of these titles are commercially available.
21.

The Works represent a cross-section of the exceptional books that are madepossible by a functioning publishing ecosystem, from perennial classic novels to more recent
highly acclaimed works of non-fiction and everything in between. Some of the greatest works offiction ever published find their place among the Works in suit, including The Lord of the Flies
by William Golding (winner of the 1983 Nobel Prize for Literature), Song of Solomon by Toni
Morrison (winner of the 1993 Nobel Prize for Literature), and Their Eyes Were Watching God by
Zora Neal Hurston. The Works also include New York Times bestselling authors like John
Grisham and James Patterson and equally popular thrillers like Gone Girl by Gillian Flynn aswell as hard-hitting contemporary novels, such as The Miseducation of Cameron Post by Emily9Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 10 of 53

M. Danforth and The Road by Cormac McCarthy, which won the 2007 Pulitzer Prize for Fiction.
Children’s books are well-represented, from old favorites like Little House on the Prairie and
The Lion, The Witch and the Wardrobe to more recent treasures, like the works of Lemony
Snicket and Escape from Mr. Lemoncello’s Library. Books for young adults are also included,
like Scat by Carl Hiaasen and The House on Mango Street by Sandra Cisneros.
22.

No less important than the works of fiction are the outstanding examples of non-fiction books represented by the Works. The Works contain multiple titles from the ever-popular“For Dummies” series, which have taught intrepid readers the basics of everything from oil
painting to comparative religion. For those looking for success in business, the Works include
books by the management guru Patrick Lencioni and books on investment by billionaire analyst
Ken Fisher. Also included are Malcolm Gladwell’s highly influential works on psychology andbehavioral economics, a work by Nobel Peace Prize winner Elie Wiesel, and the well-loved A
Short History of Nearly Everything by Bill Bryson.
B.

Defendant

23.

Defendant IA is a 501(c)(3) corporation, organized under the laws of California,

with its principal place of business at 300 Funston Avenue, San Francisco, CA 94118.
24.

IA is registered with the New York Department of State to transact business andaccept service of process within the State of New York. IA currently transacts business within
the State of New York and this District by, inter alia, distributing digital copies of books (andother content) to New York residents over the Internet, by providing New York residents withservices-for-a-fee related to the digitization of books, and by soliciting and accepting
contributions from New York residents to further its digitization and distribution of books. In
addition, certain Works were copied and digitized by IA in New York.

10

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 11 of 53

25.

IA harms the Publishers in this District because IA has copied and uploaded the

Publishers’ copyrighted books to its Website, including each of the Works in suit, without
permission, and IA currently distributes copies to users of the Website, in New York or
elsewhere. Upon information and belief, many of the acts of copyright infringement committed
by IA set forth in this Complaint occurred within this State and District—including illegal
reproductions, distributions, public displays, and/or public performances. Both the Publishers’
economic and author relations damages are primarily felt in this State, where three of thePlaintiffs have their principal place of business and the fourth (Wiley) is incorporated. IA knew
it would cause injury to Publishers in this State and District, or it should have reasonably
expected injury to occur here. Indeed, IA acknowledges that in the last thirty days over 151,000
views on its site came from New York State, making New York the jurisdiction with the third
highest IA views in the world. See Internet Archive, Books to Borrow,
https://archive.org/details/inlibrary?tab=about (last accessed May 29, 2020).
26.

IA derives substantial revenue from interstate and international commerce.

According to public filings, IA has earned over $100 million in the last ten years from a national
network of supporters, at least some of whom are based in New York, and from the services it
sells to clients in New York and all over the United States, including industrial-scale bookscanning services.
27.

Defendants Doe 1 through Doe 5 are certain individuals or entities whose true

identities are not currently known to Plaintiffs. Defendants Doe 1 through Doe 5, who are sued
under fictitious names, are those who also may be responsible for the unlawful activities
complained of herein. (Doe 1 through Doe 5 do not include any public, university, or academic

11

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 12 of 53

libraries.) Once Plaintiffs ascertain their identities, Plaintiffs will seek leave of the Court toamend the Complaint to include Defendants Doe 1 through Doe 5 as named defendants.
JURISDICTION AND VENUE
28.

This Court has subject matter jurisdiction over this action, which arises under the

Copyright Act of 1976, 17 U.S.C. §§ 101, et seq., pursuant to 28 U.S.C. §§ 1331 and 1338.
29.

This Court has personal jurisdiction over Defendant pursuant to CPLR 302

because, inter alia, Defendant transacts business within the State of New York and supplies
services in this State; because Defendant has committed tortious acts within the State of New
York, including the direct and indirect infringement of Plaintiffs’ exclusive rights in copyrighted
books; and, because Defendant has caused injury to Plaintiffs in this State by allowing Internet
users to download and view Plaintiffs’ Works for free on the infringing Website and knew orreasonably should have known its acts would have consequences in this State, all while deriving
millions of dollars in revenue from interstate commerce,.
30.

This Court independently has personal jurisdiction over Defendant pursuant to

CPLR 301 because IA is registered to do business in the State of New York and has pervasive
corporate ties to the State that are sufficient to justify the imposition of general jurisdiction here.
31.

Venue is proper in this District under 28 U.S.C. §§ 1391 and 1400.
FACTUAL BACKGROUNDA.

The Book Publishing Ecosystemi.

Publishers and Authors Rely on Copyright Law to Create Functioning
Markets for Books

32.

Books are a cornerstone of our culture and system of democratic self-government

and play a critical role in education. Because books require so much time and effort to write anddevelop, they offer the promise of high-quality expression, important insights, and long-term

12

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 13 of 53

value to society. But the qualities that make books among the most reliable conduits of learningand most intensive sources of creative expression come at a high cost. Publishers are largely
responsible for bearing these costs and, in doing so, act as leading defenders of free speech,
promoters of literacy and scientific knowledge, and creators of the stories people thrive on.
33.

Authors devote great effort and care in researching and writing books, a skill

which requires training and imagination. It is not unusual for an author to spend years writing asingle book of fiction or nonfiction. Many authors, from the most celebrated New York Times
bestsellers to new talents still making a name for themselves, write books for a living and rely on
income from writing as their primary means of support. Writing is an expert craft, but one that iscommercially unpredictable. Authors who find success with one book may benefit fromrenewed interest in and sales of their previous titles. Copyright law supports this long potential
by ensuring a lengthy term of protection, as well as licensing and sale possibilities.
34.

In the United States, publishing dates back to the dawn of our democracy. Overhundreds of years, book publishers like Plaintiffs have invested in the talent of authors anddeveloped unparalleled expertise in the art of publishing high-quality books by providing avariety of vital services including editing, marketing, and distribution. Publishers expend thenecessary resources, financial and otherwise, in reliance on the enforceable exclusive rights
afforded by copyright law that make recouping expenditures possible. The steadfastness of thelaw, in turn, promotes new technologies and new business models and distribution mechanisms
by which to reach new audiences, no matter the circumstances. Indeed, at a time of crisis such as
we have now with COVID-19, the continued viability of publishing is more important than everto society.

13Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 14 of 53

35.

The founders of this nation wrote a copyright clause into the Constitution toempower Congress to incentivize authors to create and publish their work, yielding a robust
history of Copyright Acts that date to 1790 and have always squarely addressed the protection ofbooks. The Copyright Act of 1976—which enacts the constitutional imperative into law andbalances the rights of readers with the rights of copyright owners—enables authors to profit fromwriting books by granting them the legal right to control the reproduction, distribution, public
display, and public performance of their work, and to create derivative works, among otherexclusive rights. Each of these rights is implicated in this action.
36.

In a related fashion, copyright law gives authors and publishers, as rightsholders,

exclusive control over how to publish their content in order to allow book markets to develop
and thrive. This includes empowering publishers to tailor their means of distribution and termsof sale or license depending on the format or medium in which a particular title is released.
These carefully calibrated markets are precisely the markets that IA seeks to disrupt and destroy
by arrogating to itself the right to engage in bulk digitization of the Publishers’ in-copyrightbooks without a license and without any compensation, and by distributing the resulting illegal
bootleg copies for free over the Internet to individuals worldwide.
37.

Over hundreds of years publishers have found ways to maintain viable markets

for books even as revolutions in publishing have driven changes in format, from leather-boundhardcover books to paperbacks to the paperless ebooks we read on digital devices. The ability of
publishers to develop a diversity of new channels as technology evolves is crucial to meeting thehigh cost of publishing.
38.

This includes the market for both new and “backlist” books. Book publishers

derive substantial revenue from backlist books, which range from venerable classics like The

14

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 15 of 53

Bell Jar by Sylvia Plath or Winds of War by Herman Wouk to works written only a few years
ago, including bestselling works such as Eat, Pray, Love by Elizabeth Gilbert andCommonwealth by Ann Patchett, all of which are Works in suit. Moreover, a great deal of themost successful children’s books, including many of the Works, are backlist books.
ii.

The Development of Functioning Markets for Ebooks

39.

The rise of a commercial market for ebooks provides an example of publishers’

adapting to new technologies to create new and diverse channels to meet the demands of readers.
Since the early 2000s, Plaintiffs and other publishers have offered readers digital versions of
their books, which can be read on portable electronic devices such as the Kindle, Nook, iPad, andother smart devices. Since that time, ebooks have grown to become a major source of revenue
for authors and publishers. Publishers have invested heavily to expand the ebook market,
including by publishing their backlist titles in ebook form. They have devoted considerable time,money, and professional expertise to create high-quality ebooks to deliver to readers. Authors
rely on publishers to present their works well to readers.
40.

The fundamental differences between print and digital formats require publishers

to market print books and ebooks in different ways. Not only are the cost structures anddistribution systems different for these two formats, but ebooks are digital files that can posesignificant security concerns. Without protective measures, digital files can be copied perfectly,
instantaneously and in practically infinite quantity at virtually no cost, and distributed all over
the world in a split second.
41.

Because of these material differences in format, publishers do not distribute

ebooks the same way that they sell traditional paper books. Like other copyright sectors thatlicense education technology or entertainment software, publishers either license ebooks to
consumers or sell them pursuant to special agreements or terms established by each publisher
15Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 16 of 53

and the platforms on which the ebooks may be read. By contrast, they sell copies of print books
without any restrictions.
42.

When an ebook customer obtains access to the title in a digital format, there are

set terms that determine what the user can or cannot do with the underlying file. Publishers alsouse digital rights management technology (“DRM”) to restrict the use and further distribution of
ebook files. The commercial ebook market would not be viable if publishers lacked the ability toplace any control over the means of distribution of ebooks or to prevent unlimited copying or
distribution of the files.
43.

Copyright law recognizes and enforces the right of copyright owners to control

their works through DRM technology. In 1998, Congress enacted the Digital Millennium
Copyright Act (“DMCA”), which made it illegal to circumvent DRM technology. The rightsthat enable publishers to control the publication of ebooks ultimately benefit readers because
they enable publishers to provide their ebooks to a variety of channels and at a variety of pricepoints that make sense for the specific authors and titles in their catalog.
44.

Over the past twenty years, publishers have embraced the shift to digitalcommerce and correspondingly offered consumers an ever-evolving variety of formats,distribution, and access models. Indeed, Plaintiffs have collectively made thousands of thebooks in their catalogs available in ebook form, including the Works identified in this suit andhundreds of thousands of other works, backlist titles included. Virtually all of the trade books
being offered for sale by Plaintiffs, including backlist books, are available in both print andebook form.
45.

At the same time, it is a basic tenet of copyright law that the copyright holder

retains the exclusive right to decide whether or not to publish a copyrighted book in a digital

16

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 17 of 53

format. At times, authors and publishers make the purposeful decision not to publish particular
titles as ebooks. Some niche categories of books are excluded from the ebook market because
they are not suitable for that market. In other cases, authors and publishers decide not to publish
ebooks because a digital edition would be far inferior to a print version—as with some heavily
illustrated books, art books, or creatively designed children’s books.
iii.

The Established Market Equilibrium Between Authors, Publishers, andLibraries

46.

Public libraries are among the most cherished institutions in this country. To

Plaintiffs, libraries are not just customers but allies in a shared mission to make books available
to those who have a desire to read, including, especially, those who lack the financial means topurchase their own copies. Much like a publisher must decide which books to invest in—balancing all sorts of considerations—librarians must make reasoned decisions about whichbooks to purchase in order to best serve the needs of their communities.
47.

Plaintiffs have worked with libraries and library aggregators such as OverDrive topioneer an innovative and highly successful service that enables library patrons to easily andlawfully obtain digital copies of books. Under negotiated terms, publishers provide their ebooks
to library aggregators, who, in turn, work with libraries and their patrons to host a platform that
permits and tracks the lending of ebooks. In this way, library patrons can log onto their libraryaccounts from their homes or any other location, download ebooks onto their computers,
smartphones, or e-reading devices for a limited time period under stated terms of use and readthem without physically visiting their local library. Each library focuses its services on its
community, making ebook (and other) acquisition decisions based on the specific needs of local
patrons.

17

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 18 of 53

48.

As competitors in the marketplace, Plaintiffs have each worked with libraries andlibrary aggregators to develop innovative models capable of sustaining a functioning market for
their respective ebooks. These pricing and agreed terms of use—which vary from publisher topublisher and can vary by market segment—continue to evolve based on the feedback fromlibraries and other considerations. There is a vibrant market for selling and licensing ebooks tolibraries to provide their patrons with lawful copies of ebooks. But that market cannot besustained if, rather than patronize their local library, individuals can freely download
unauthorized scanned copies of Plaintiffs’ books from IA’s Website.
iv.

Plaintiffs and Libraries Reacted Rapidly to Ensure Library Patrons Have
Access to Books During the COVID-19 Lockdown

49.

The advent of the COVID-19 pandemic has shown that online commerce is more

important than ever to publishers, authors, bookstores, and libraries. During this time period,
many customers have been well-served by existing digital business models, both commercial andnoncommercial. Additionally, publishers and libraries have engaged in numerous emergencyrelated initiatives to ensure that readers retain access to books while nationwide stay-at-homeorders remained in effect. They have ranged from providing free ebook copies to library patrons
during the shutdown in specific instances, to donating hundreds of thousands of print books, toworking closely with schools, colleges, and teachers to ensure access to and availability of books
necessary for online learning.
50.

The Publishers have used their exclusive rights to strike an appropriate balance

between the interests of the relevant parties, particularly authors and readers. Moreover, themeasures taken by the Publishers in response to the COVID-19 pandemic also take into accountthe needs of booksellers, particularly independent bookstores, most of which are small
businesses that have been crippled by the shutdowns. Copying and giving books away to18

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 19 of 53

everybody for free—as IA has done with Plaintiffs’ and others’ works—deprives booksellers of
the sales that they need to stay afloat and authors of royalties they otherwise count on ascompensation for their work.
51.

Libraries have been equally proactive in meeting the challenges of the COVID-19

pandemic. For example, despite the closure of their physical locations, many libraries haveallowed new patrons to sign up for library cards online. Patrons are still able to lawfully
download hundreds of thousands of ebooks and online materials through the digital lending
systems that libraries and publishers have developed. IA’s Website steers readers away from thedigital platforms that local public libraries continue to operate.
B.

Internet Archive Unlawfully Disrupts the Book Publishing Ecosystem by
Infringing Copyright on an Industrial Scale

52.

Despite its efforts to cast itself as the hero in this story, IA’s business model for

the Website—which is essentially to freely disseminate scanned copies of every physical book it
can lay its hands on—is parasitic and illegal. IA exploits the invaluable work that authors andpublishers do without investing in any of the effort or paying any of the costs associated with thecreation and publication of the books. What IA does is copyright infringement, plain and simple,
and it must be stopped.
i.

Internet Archive

53.

Brewster Kahle founded Internet Archive in 1996. Internet Archive provides anumber of services not at issue in this action, including its Wayback Machine and digitization of
public domain materials. At issue here is IA’s scanning of in-copyright books and distribution ofdigital copies via its Website. Notably, it operates with a surprisingly unsubtle penchant formoney-making behind its non-profit 501(c)(3) tax code designation.

19

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 20 of 53

54.

IA reported more than $150 million of revenue in the last ten years, according to

publicly available tax filings. As per its 2017 tax filings, it employed 150 employees. IA’s
headquarters are located in an exclusive area of San Francisco. Kahle expanded the IA empire in2019 by purchasing through Better World Libraries, a shell company he controls, the for-profit
Better World Books, an online retailer that predominantly sells used books.
55.

The bulk of IA’s revenue is derived from contributions from large donors,

including tens of millions of dollars from the Kahle/Austin Foundation. The Kahle/Austin
Foundation is an entity established by Brewster Kahle and his wife to give money to IA andother favored projects. In 2018, the Kahle/Austin Foundation reported assets of $104,483,456.
IA also has reported sizeable donations from other large foundations, some of which are based in
New York.
56.

IA has an interlocking web of contributions and commercial services that support

its Website. In addition to receiving large-dollar donations, IA has made tens of millions ofdollars from selling commercial services. One of the services it offers is industrial-scale bookscanning and digitization, which has generated more than $25 million in revenue since 2011. IAprovides this service to customers nationwide, and as its marketing materials tout, employs a
Regional Digitization Manager for customers in the “NJ/NY/PA” area. Upon information andbelief, this employee currently resides in New York City. This same employee helped to set up
and manage IA’s first digitization center, which was housed for an extended period of time inthis District.
ii.

The Open Library57.

IA started the “Open Library” in or around 2006 with the goal of providing “oneweb page for every book published.” An online catalog of all the books in the world was not anovel concept. Since 1998, the WorldCat database run by the Online Computer Library Center
20

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 21 of 53

has provided an exhaustive online catalogue of library books, which currently contains over 450
million bibliographic references.
58.

But IA was not content with a resource tool designed to help users find books.

Taking a step further, IA created the Website with the goal of providing free downloads of entire
copies of every book ever published. Over the course of several years, IA has gradually built up
a program designed to obtain vast quantities of print books in bulk, scan them on an industrial
scale, and distribute digital copies through the Website without any license from the copyrightowner.
59.

IA engages in this massive, industrialized scanning of print books to create digital

files in large part to evade the Publishers’ commercial terms for ebooks and because DRM
precludes the duplication of Plaintiffs’ ebooks. In other words, IA employs this end-run as ameans to avoid both the Publishers’ ebook use restrictions and the dictates of the DMCA bycreating its own bootleg electronic versions of the books through scanning. But that end-run isunlawful and equally harmful to the Publishers and their authors, who receive no compensation
for IA’s reproduction and distribution of their works in digital form and whose paid offerings
cannot readily compete with IA’s free but unlawful versions.
60.

The basic purpose of IA’s massive book digitization project is the same as

Plaintiffs’ basic purpose in publishing books, which is to distribute reading material. This is instark contrast to other large-scale book digitization projects, like the ones carried out by Google
and the HathiTrust, which created digital indexes of the contents of books that could be used forthe purpose of online search, but which never made the contents of entire books freely available
to the general public. Here, IA allows every person in the world to instantly download complete

21

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 22 of 53

books or download them—without ever receiving the necessary permission from the copyrightowner.
61.

In a 2017 interview, IA’s founder stated, “We’re trying to . . . make all the

published works of humankind available to people, permanently. If you’re curious enough towant to have access, we can make it available [sic] to all the books, music, video, web page,
software, lectures, available to anybody wanting to have access.” Mary Kay Magistad, Where tofind what’s disappeared online, and a whole lot more: Internet Archive, PRI.org (Feb. 23, 2017,
8:00 p.m.), https://www.pri.org/stories/2017-02-23/where-find-whats-disappeared-online-andwhole-lot-more-internet-archive.
62.

In recent years, IA has started to ramp up its efforts. The annual income reported

by IA has nearly doubled since 2013 and the rapid accumulation of funds has been accompanied
by public statements promising aggressive expansion. In 2019, for instance, the Director ofOpen Libraries told Library Journal that he aimed to increase the acquisition of books in bulk
and speed up the rate of book digitization to 500,000 books per year. The goal of thisaccelerated activity is to put “more than four million books online for the public,” which would
match the number of books in the collection of a large metropolitan library system. Matt Enis,
Internet Archive Expands Partnerships for Open Libraries Project, Library Journal (May 2,2019), https://www.libraryjournal.com/?detailStory=internet-archive-expands-partnerships-foropen-library-project.
63.

As the number of scanned books on the Website increases exponentially, themisrepresentations IA employs to justify its infringing activities are exposed. For example, IA
frequently characterizes the books on the Website as twentieth-century works that do not haveactive sales or available ebooks, as if infringement is allowed if a work is not readily available

22

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 23 of 53(which it is not). But this “old books” defense is a fantasy. As is evident from IA’s own figures
and the Works in suit, many of the books that IA provides in the most popular categories, such as
biographies, were published in the years leading up to 2000 and in the twenty-first century, withrelatively few books from earlier in the twentieth century. This is evident from the Open
Library’s own graph illustrating the year of publication for its biographies:

64.

Indeed, the Works in suit include books first published in 2019, including The

Man Who Solved the Market: How Jim Simons Launched the Quant Revolution by Gregory
Zuckerman, with a publication date of November 2019.
65.

In short, IA directly harms the Plaintiffs’ print and ebook markets in all market

segments by providing competing substitutes for numerous original works currently available intheir catalogs.
66.

IA knows that it cannot proceed with the mass digitization and distribution

reflected by the Website without an agreement with the Publishers on mutually agreed terms.
The Publishers and/or their trade association AAP have put IA on direct notice that Open
Library’s unauthorized reproduction and distribution of copyrighted works is infringing. For
example, in 2018, HarperCollins put IA on express written notice that its actions in connection
with Open Library with respect to HarperCollins’ titles were infringing and not justified under its
various manufactured defenses. Despite actual notice that its actions were illegal and without
any basis in law, IA has willfully persisted with its infringing activities.

23

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 24 of 53

iii.

The User Experience of the Website

67.

From the perspective of the Website user, IA offers an ostensibly attractive

proposition: free copies of about 1.3 million books. Anyone with an Internet connection and an
email address can sign up for an account to use the Website in a matter of minutes. The process
requires no verification of the user’s identity, and there is nothing to prevent users from creating
multiple accounts with dummy email addresses in order to circumvent limits, assuming any are
in place at all.
68.

Once on the Website, a user is taken to a landing page that suggests titles undercategories such as “Books We Love,” “Romance,” “Science,” “Kids” and “Thrillers.” Users canalso search for books according to title, author, subject, ISBN, and other categories.
69.

Clicking on a book title takes the user to the title’s webpage on the Website,which contains a picture of the cover, a description of the book and bibliographic information,such as the publication date and the WorldCat catalog number. As shown in the screenshot on
the following page, which is a typical webpage on the Website, the user is also presented withlinks through which he or she can buy a copy of the book.

24

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 25 of 53

70.

The first—and most prominent—“Buy this book” link is to Better World Books,

the online, largely used bookseller owned by a shell company controlled by IA founder, Brewster
Kahle. Notably, IA does not provide links to the book publisher’s or author’s website.
71.

For each book on the Website, IA gives users one of two options, which it calls“read” or “borrow.” The books in the “read” category are books that IA presumably has
concluded are in the public domain. For books in the “read” category, the Website has no limit
on how many users can download them, either at any point in time or in the aggregate. Users
who choose the “read” option can download to their computers, e-readers, or mobile devices ascanned copy of the entire book in a variety of digital formats that lack any DRM protection,
25

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 26 of 53

including as a .pdf file. Once a user downloads a book as a .pdf, he or she is free to makeunlimited copies of the book and can distribute it to whomever they wish at no cost.
Alternatively, users can read these books through the IA’s “Book Reader” interface described
below.
72.

Although the books that IA classifies in the “read” category are presumably

supposed to be in the public domain, sometimes the books are in fact protected by copyright.
For instance, at one point, any Internet-connected individual could download copies of themodern classic To Kill a Mockingbird, which is still under copyright, without any restrictions. In
other cases, copyrighted books have been distributed without DRM restrictions because, upon
information and belief, IA erroneously decided that they were public domain works based onelementary misunderstandings of copyright law.
73.

Under the second option, IA permits users to “borrow” titles from the Websitethat it recognizes are not in the public domain through its so-called “controlled digital lending”
protocols. “Borrow” is a euphemism for an illegal reproduction and distribution. As described
below, “controlled digital lending” is a manufactured legal paradigm, conceived by IA, to castaside well-established copyright jurisprudence.
74.

Under IA’s “controlled digital lending,” a Website user can download a certain

number of books at a given time, which IA has currently set at ten. Once IA has distributed the
maximum number of books the user is allowed, he or she must check a book back in before
taking another one out, although there is nothing to prevent a user from circumventing this limit
by setting up multiple accounts. Each such “loan” lasts for a two-week period. When the period
ends, the book is supposedly “checked in” by the Website.

26

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 27 of 53

75.

Until the recent pandemic and the advent of IA’s so-called “National Emergency

Library,” IA claimed that it also enforced an “owned to loaned” ratio that restricted the numberof users who could borrow a copyrighted book at once. In theory, this means that the number ofscanned copies of a title downloaded from the Website at any one time cannot exceed thenumber of print copies of that title owned by IA or its partner libraries. If that number is
exceeded, then the user is ostensibly put on a “waitlist.”
76.

Users that have successfully checked out a book can read it immediately on theWebsite’s Book Reader platform. IA publicly displays a copy of the work on that platform.
This interface operates in the user’s web browser and provides a digital replica of a hard copy
book, as shown in the screenshot below:

27Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 28 of 53

Users can turn the pages by clicking on them or using buttons below the page. The Book Reader
also allows users to click an “audio” button, at which time IA’s software mechanically reads thebook aloud.
77.

IA also enables users to download and view copies of books using a software

program called Adobe Digital Editions (“ADE”). The ADE files are purportedly protected by
DRM technology that restricts certain copying and only allows users to access the file during thefourteen-day loan period, at which time it locks them out.
78.

The Website allows users to “borrow” books in two ADE formats: “Encrypted

Adobe PDF” (which is billed as containing “High Quality Page Images” of the entire hard copybook) and “Encrypted Adobe ePub.” The Encrypted Adobe PDF is not the kind of speciallyformatted ebook that a user would purchase as an authorized ebook. Rather, it is a digital fileconsisting of a scan (i.e., photograph) of the pages of a physical book. IA generates the
Encrypted Adobe ePub file from scanned books using optical character recognition technology.
The Website distributes the Encrypted Adobe ePub as a “smaller file,” but acknowledges it “maycontain errors.” This is an understatement. The ePub files tend to be rife with transcription
errors and are sometimes entirely illegible, as can be seen from the example on the following
page.

28

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 29 of 53

79.

Users can read the books they download as ADE files on devices such as

smartphones, tablets, and e-readers like Kindle, Nook or iPad. The Book Reader platform has
been designed to work on mobile devices as well. IA has boasted on its blog that Website users
can borrow books and read them on their devices just as easily as they can read ebooks
legitimately purchased or borrowed from licensed services. While the quality of the digitalformat scans that IA provides are inferior to the quality of Publishers’ ebooks, these bootleg
versions act as a substitute for the authorized versions, since readers select titles for their content.
No one reads a James Patterson thriller after downloading a scan of the book from Open Libraryand then declares, “I liked it so much, I am going to read an authorized ebook again on myKindle for a different experience.”

29

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 30 of 53

iv.

The Open Library Is Not a Library, It Is an Unlicensed Aggregator andPirate Site

80.

Defendant bills its Website as “an accredited California State Library run by the

non-profit Internet Archive,” but this branding fraudulently misleads on several levels.
81.

The Open Library is not an “accredited library” by any commonly understooddefinition of those words. The reference to accreditation refers, upon information and belief, tothe fact that the State of California provided IA with federal funding through the LibraryServices and Technology Act (“LSTA”) in or around 2011. LSTA awards are available to awide array of organizations, not just actual libraries, including for example the Los Angeles
Philharmonic Association. In short, the fact that Internet Archive was able to meet the broad
criteria for LSTA funds does not make it an “accredited library,” and it most certainly does notmake it the trusted equivalent of a public or academic library.
82.

More fundamentally, the Website lacks the characteristics shared by actual

libraries. Instead, the service it provides more closely resembles that provided by aggregators
like OverDrive, that Plaintiffs routinely engage to distribute ebooks, with defined terms of use
and at an agreed-to fee—except IA operates without authorization or remuneration. For
instance, whereas libraries serve local and academic communities, the Website distributes copies
indiscriminately to everybody on the planet, or at least everybody with a connection to theInternet.
83.

IA tries to wrap itself in the flag of an “educational” enterprise, but it is not. First,

it is not an educational institution or even an affiliated academic library serving a defined
university community. It is devoted to education no more specifically than any platform thattransmits, streams, or otherwise delivers content on the global Internet. Moreover, the notionthat the Website specializes in educational material is pure fiction. A quick glance at the30

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 31 of 53

Website’s landing page shows that it lists thrillers and romance novels more prominently than
textbooks or other works that may be used in schools. Further, upon information and belief,
many of the non-fiction books on the Website are read for personal entertainment or edification,
not classroom use:

31

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 32 of 53

84.

Branding itself as a “library” does not imbue Defendant with the right to engage

in behavior that would otherwise be considered wholesale theft.
v.

IA’s Industrial Book-Scanning Machine and Global Scanning Operations

85.

IA has devised a commercial full-service loop that funds its quest to distributedigital copies of every book, and at the same time, provides millions of copies of the very works
it needs to stock its Website.
86.

To this end, IA has implemented an industrial process that enables it to scan the

many millions of books it has acquired and continues to amass. The “Scribe system” developedby IA uses a sophisticated scanner operated by manual labor. See Internet Archive, Internet
Archive Digitization Services – Partner Documents, https://archive.org/details/partnerdocs (lastaccessed May 31, 2020). IA invented the Scribe scanner for the purpose of scanning books in
bulk:

32

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 33 of 53

87.

Upon information and belief, a single Scribe scanner can digitize a 300-page bookin five minutes. According to its promotional materials, IA operates seven “regional digitization
centers” and eleven “satellite locations” in the United States, Canada, and the United Kingdom,with multiple Scribe scanners at each location. Upon information and belief, IA has employed
more than 50 “book scan center staff” to work within facilities housing Scribe scanners, who areresponsible for digitizing the books to add to the Website. Upon information and belief, IA has
also engaged low-wage contractors in other countries, such as the Philippines and China, to scanbulk quantities of books that are shipped there from the United States. Upon information andbelief, IA also has recruited and used unpaid volunteers to scan copyrighted books for theWebsite. IA can scan 3,000 books in a single day when operating at full capacity, according to
its Archivist and Software Creator, Jason Scott (believed to be a New York resident).

33

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 34 of 53

88.

At one point, IA operated a digitization center in this District and, although it has

been discontinued, the Website currently contains many copyrighted books that were scanned in
New York, including some of Plaintiffs’ Works in suit.
89.

IA makes multiple reproductions of Plaintiffs’ books at various stages. As IA

photographs each page of a book using the Scribe scanner, the scanner creates a digital copy of
those pages and then combines them with copies of all the other pages to make a single digital
copy of the entire book. IA then copies each digital book file onto its main computer servers
located in San Francisco, together with metadata about the book and the scan or file. Multiple
copies of the scanned book pages are made in the course of this process as IA converts the file
into different formats (including, inter alia, .pdf, ePub, OCR text files and audio formats) andthen reproduces all of those files onto its servers.
vi.

Internet Archive Shifts the Costs of Its Illegal Book Digitization Project Onto
Publishers, Libraries, Open Library Users, and Other Third Parties

90.

IA’s business model for Open Library is predicated upon infringement, and it

willfully inverts the carefully balanced book publishing ecosystem. Whereas publishers, authors
and libraries actually invest the time and money that it costs to publish and distribute a book, IA
refuses to pay for any of these costs and has even devised a parasitic system to shift the costs of
its large-scale infringement onto other people.
91.

IA attempts to present the Website as an altruistic non-commercial enterprise.

But despite its technical not-for-profit status, IA has set itself up to generate huge amounts ofrevenue from the very people and entities it is supposed to be helping in order to fuel its
copyright infringement project, as the following examples illustrate. IA should be seen for what
it actually is: a commercial actor.

34

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 35 of 53a.
92.

Internet Archive is Paid Millions of Dollars to Infringe Copyrighted
Books and Put Them on the Open Library

IA operates a major commercial business performing scanning and hosting

services. This provides a critical revenue stream that IA uses to fund and facilitate its piracy
scheme. IA first induces various libraries to pay to have books in their collections scanned at a
set price, and, at the same time, copies of all the works scanned are provided to the Open
Library. While most public libraries have agreed to scan only public domain materials, on
information and belief, IA also has earned substantial fees scanning and uploading some librarycollections of copyrighted books.
93.

In a recent blog post, Brewster Kahle admits that “[l]ibraries paying for ourscanning services is a major source of earned income for the Internet Archive.” See Brewster
Kahle, Internet Archive Staff and Covid-19: Work-at-Home for Most, Full-Pay Furlough andMedical for Scanners (Mar. 25, 2020), https://blog.archive.org/author/brewster/. Evidence fromIA’s publicly available tax records confirm that it has made over $25 million from book scanningsince 2011. Of course, IA also profits from adding copies of the books it scans to the Website,using funds from donations, foundations, and elsewhere.
94.

Plaintiffs obviously have no objection to the digitization of public domain titles.

Nor do they object to anyone granting IA a license to put books or journals that they own therights to on the Website. But IA has designed its bulk book scanning service for libraries to be apipeline that feeds the Website with extensive copyrighted material in addition to the permitted
copying of any public domain or licensed material, all at no cost to IA.
b.
95.

Better World Books Feeds the Open Library with Copyrighted Books

The acquisition of Better World Books by a shell company controlled by Brewster

Kahle in 2019 has provided IA with yet another way to acquire books for the Website without

35

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 36 of 53

actually paying for them. As part of its business model, Better World Books acquires massquantities of used print books, including what it refers to as a “Library Discards & Donations”
program that it claims works with librarians to “reuse or recycle” surplus library books. Better
World Books funnels books to IA, which scans and uploads them to the Website. Moreover, thecomplex series of circular relationships between IA and Better World Books further contributes
to the commercial nature of IA.
96.

This arrangement creates a perfect closed loop system that benefits IA in several

ways. As IA stated in the press release accompanying the acquisition, the new relationshipbetween Better World Books and IA “will allow Better World Books to provide a steady streamof books to be digitized by the Internet Archive, thereby growing its digital holdings to millions
of books.”
97.

Upon information and belief, the system works as follows: first, Better World

Books acquires millions of used print edition books (provenance unknown), which it provides to
IA to be scanned and added to the Website for widespread downloading and distribution.
Second, the webpage for every digital format book on the Website—including the pages for thebooks provided by Better World Books—includes a prominent link inviting the user to buy aprint copy of the book from Better World Books. Upon information and belief, this sale not only
benefits Brewster Kahle’s shell corporation, but the traffic that IA drives to Better World Books
results in more book sales, which enables IA to acquire more books to scan and upload to theWebsite. And the cycle repeats. Better World Books also encourages its customers to donate
funds to IA by topping off their purchases to a higher dollar amount.
c.
98.

Users “Sponsor” Books that Internet Archive Wants to Infringe

IA also earns revenue from users in exchange for special access to individual

book titles through its “sponsorship” program. In some ways, this is little different from36

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 37 of 53“selling” limited access to digital books to these sponsors. In brief, IA gives users the option to“sponsor” books that it does not have and wants to add to its collection. The sponsorshipprogram is so central to IA that the main landing page for the Website features at the very top theselection of books it would like users to sponsor:

37

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 38 of 53

99.

Users who click on the sponsor option are taken to a webpage that informs themthat a “tax deductible donation can add this book to Internet Archive’s lending library, forever.”The book page informs the user of the cost of the “donation” required to purchase the book.

100.

In this case, users were given the option to purchase for IA a copy of Back to the

Batcave by the late actor Adam West, who played Batman in the cult-classic 1960’s television
show, for a hefty donation of $93.12. As an inducement to sponsor the book, users are given theright to be the first to borrow the book when it becomes available and to add a “personalized
sponsorship message.” IA uses donations it receives for sponsored books to obtain a physical38

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 39 of 53

copy of the book, scan it, and upload the digital copy to the Website for download. It is not clear
how IA uses any money left over.
101.

IA’s book sponsorship scheme is breathtakingly brazen. In essence, IA tells its

users which copyrighted books it wants to infringe. Then it asks users to pay a “donation” far inexcess of the list price of the book for IA to go out and buy a print copy from an undisclosed
source, possibly Better World Books. Finally, IA uses the user’s money to scan the book and put
it online, where anyone can get a copy for free—completing the copyright infringement process
without spending a single dollar of its own money. Tax-deductible donations are not meant tofoster piracy.
102.

The sponsorship option is also designed to drive an accelerating cycle ofinfringement. By encouraging users to sponsor the books they most want, IA incentivizes its
users to select popular books. Once IA obtains the print book, scans it, and uploads it to theWebsite, that infringing file will attract new users. The new users will, in turn, sponsor evenmore popular books, which will attract even more users and so on, ad infinitum.
d.
103.

Internet Archive Absorbs Entire Libraries for the Website

Yet another way IA acquires books for free is to solicit and accept bulk donationsof books from struggling or defunct libraries. In a May 2019 article, Open Libraries Director
Chris Freeland described IA’s “acquisition program,” stating that it “involves collecting
donations of in-copyright materials from libraries and booksellers, digitizing this content in[IA’s] scanning center in Cebu, the Philippines, and then storing the physical copies in archive
facilities in Richmond, CA” (emphasis added).
104.

Ironically, the many thousands of hard copy books IA obtains from defunctcolleges or libraries will likely end up in “archive facilities in Richmond, CA,” which consist oflarge shipping containers owned by IA. Once locked away, upon information and belief, IA will39

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 40 of 53

make no effort to make the print books available to be read, like books in actual librarycollections. Instead, the print copies primarily exist to rationalize, or provide the predicate for,IA’s argument that there is a one-to-one correlation between print copies legitimately owned andtheir illegitimate ebook scanned copies.
105.

Through its acquisition program—and similarly aggressive book scanning, Better

World Books and “sponsorship” schemes—IA seeks to achieve its next benchmark of putting 4
million copyright-protected books on the Website.
106.

Remarkably, every one of the systems for acquiring books described above isdesigned so that IA avoids paying authors or publishers anything, while simultaneously ensuringthat IA rakes in money from its infringing services and, at the same time, obtains free books for
the Website.
vii.

Controlled Digital Lending107.

IA relies on the contrived theory of “controlled digital lending” described above

as its central defense to charges of copyright infringement. But CDL is an invented paradigm
that is well outside copyright law, appears to have sprung up in response to the objections of
copyright owners to IA’s infringing activities and, in any event, does not excuse IA’s massive
infringement.
108.

IA is a leader and organizer of a larger proselytizing movement of academics andactivists seeking to find a way to justify a “scan first, figure out the details later” approach to themass digitization of copyrighted books. In 2018-19, IA sponsored the drafting of a “White Paper
on Controlled Digital Lending of Library Books” by law professors David R. Hansen and Kyle
K. Courtney. IA and Brewster Kahle broadly promote CDL, speaking widely and engaging in a
broad public relations campaign, inducing others, including libraries, to join their cause and40

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 41 of 53

cynically using them to reflect their glow of legitimacy onto the Website. But IA’s “controlled
digital lending” finds no actual support in the law.
109.

As a preliminary matter, Plaintiffs’ challenge whether IA maintains the detailed

records or practical control necessary to sustain the so-called “owned to loaned ratio” that is thecornerstone of CDL, i.e., the notion that the number of electronic copies of a book for downloadfrom the Website at a given time never exceeds the number of physical copies of the book owned
by IA or one of its partner libraries. With respect to the Website’s titles for which thecorresponding print books are allegedly stored at partner libraries, it defies reason that thepartner libraries will have the wherewithal to faithfully and consistently remove a book fromcirculation each time it is borrowed on the Website, and put it back on the shelf when theWebsite version is checked back in. As for the truckloads of books warehoused by IA, IA
archivist Jason Scott admitted in a recent tweet that for the millions of physical copies acquiredby IA, “[o]nly one or two unique copies are kept” and “stored at the physical archive.”“[D]uplicates (which have increased over time) are donated to various charities and non-profits.”
110.

But even if IA were scrupulously following its own invented theory of “controlled

digital lending,” the theory has no legal justification. First, IA and its supporters relied heavily
on the “first sale doctrine” codified at 17 U.S.C. §109, which entitles the lawful “owner of aparticular … lawfully made” copy of a copyrighted work, like a book, “to sell or otherwise
dispose of the possession of that copy or phonorecord.” The central thesis of the White Paper
sponsored by IA was that the broader principles reflected in this doctrine should be imported into
the fair use doctrine to protect IA’s actions. But as enacted by Congress, the first sale doctrine iscarefully confined as a limitation on only the distribution right. It permits the owner of a copy to
distribute the particular copy that has been lawfully acquired—for example, as in the secondary41

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 42 of 53

sale of a hardcover book or a painting—but it provides no exemption from the copyright holder’s
exclusive right to reproduce a work. The lynchpin of IA’s whole operation is that it scans a print
book to create a digital file—a classic unauthorized reproduction of a work that puts theapplication of Section 109 clearly out of reach.
111.

Faced with these inconvenient facts, IA has also advanced the illogical premisethat its massive illegal copying and distribution is “format shifting” protected by the fair use
doctrine. But the rudimentary use of a scanner to “format shift” print books into digital works
for distribution to the public does not constitute either a permitted personal use or atransformative use. The activity squarely intrudes upon the exclusive rights under 17 U.S.C. §106, and no exception of any kind applies.
112.

At bottom, CDL is based on the false premise that a print book and a digital bookshare the same qualities. But, as outlined above, they are fundamentally different mediums, andthey exist as distinct economic markets. As the Copyright Office phrased it in a key report,“Time, space, effort and cost no longer act as barriers to the movement of [digital] copies, sincedigital copies can be transmitted nearly instantaneously anywhere in the world with minimal
effort and negligible cost.” Digital Millennium Copyright Act (DMCA) Section 104 Report:
Before the Subcommittee on Court, the Internet and Intellectual Prop., 107th Cong. (Aug. 2001)
at p. 82, available at https://www.copyright.gov/reports/studies/dmca/sec-104-report-vol-1.pdf.
In stark contrast, a range of physical obstacles impact the distribution of books as material
objects—from the need to transport them to each reader, to the need for library patrons to travel
to libraries to take them out and return them. Further, print books deteriorate over time, unlike
digital files. Copyright law vests the copyright owner with the right to develop each market
based on terms appropriate to the medium, as well as the right to extract the full value of42

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 43 of 53

publication in digital form. These economic rights would be severely undermined if IA cancircumvent the rightsholder entirely and copy millions of print books into digital copies to be
widely distributed, even if it maintains an “owned to loaned ratio.”113.

IA’s mass digitization of books is potentially even more pernicious than ordinary

online piracy. First, its use of “library” branding deceives some users into thinking the Website
is a legitimate site. Moreover, IA not only makes millions of dollars as outlined above in ways
related to its systematic infringement but also uses those profits to fuel its mission to fill thedigital Library of Alexandria with every book ever written. Allowing IA to operate the “Open
Library” for in-copyright works will create an indelible impression for libraries and readers that
digital format books should be free—and can be free just as soon as IA scans a print copy. This,in turn, will impair the sales and licensing of books and ebooks that actually make it possible to
pay the high cost of writing and publishing the quality books that IA purports to value so much,
yet pays little or nothing to sustain.
viii.

The National Emergency Library

114.

On March 24, 2020, IA doubled down on its infringement, announcing that inlight of the COVID-19 pandemic, it would suspend the “owned to loaned” ratio aspect of CDL,
while retaining other aspects of it. In other words, Defendant altered how the Website operates
so that it could distribute as many copies of any book it wanted, no matter the number of print
copies on hand purportedly because the pandemic required it. This so-called “National
Emergency Library” was tantamount to asserting an emergency copyright act unilaterally and by
private action.
115.

IA admits that it did not bother to “engage with the creator community and theecosystem in which their works are made and published” before launching this revised approachfor the Website. When IA was roundly criticized by publishers, authors, individual librarians,
43Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 44 of 53

and the bookselling community for disregarding their interests and legal rights, IA responded
that it had merely “moved in ‘Internet Time’ and the speed and swiftness of our solution [to the
COVID-19 lockdown] surprised some and caught others off guard.”
116.

In a feigned act of magnanimity, IA assured authors that it would abide by anotice and takedown system. But this turns copyright law on its head. Copyright owners havethe power to decide in advance how their exclusive rights will be exercised. Copyright is not an“opt-out” system whereby infringers can distribute copyrighted works for free, with impunity,
until they are told to stop. The Copyright Act does not and never has put the burden on authors
and publishers to police the unlawful actions of direct infringers, which in the case of the IA not
only copies, uploads, and distributes infringing files, but asserts conditions and procedures foragreeing to stop the infringement.
117.

Defendant does not qualify as an intermediary entitled to certain protections

under the Digital Millennium Copyright Act. The DMCA allows the operators of online services
that host content posted by users and meet certain conditions to avoid copyright liability by
responding expeditiously to a takedown request from the rightsholder. The DMCA notice andtakedown system is inapplicable to this case because IA, not third-party users, uploads theinfringing files to the Website. And to add insult to injury, both before and since the “National
Emergency Library,” when faced with the frustrated demands of authors or publishers, IA has
often failed to stand by its proclamation to honor takedown requests, or opt-outs, thereby further
exposing the overall lack of integrity that surrounds this process.
118.

The Website as operated under the “National Emergency Library” parameters

does not qualify as a fair use. Among other reasons, no one anointed IA to address theeducational needs of the nation, and the Website has not been designed to meet specific44

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 45 of 53

educational needs or even to focus only on books that are not commercially available. Section
110 of the Copyright Act, known as the TEACH Act, already grants teachers broad rights
regarding the use of literary works, and book publishers, libraries and schools have on their own
initiative sought to address educational needs directly during the health crisis while keeping in
mind the needs of all stakeholders. In short, Defendant opportunistically seized upon the
COVID-19 pandemic as an excuse to accomplish its long-desired goals while ignoring the law
and harming the publishing ecosystem so critical to the world of books.
C.

Defendant’s Infringement Causes Harm to Publishers

119.

In all its different iterations (including under its “controlled digital lending”

protocols), IA’s Website causes substantial harm to Plaintiffs, who produce and distribute books
on behalf of themselves and their authors, to whom they pay royalties. Without the Publishers’
permission, IA and its Open Library business are using the unauthorized book scans to exploit
existing markets (and potentially new related markets), causing authors and Plaintiffs substantial
and irreparable harm. This includes, but is not limited to, the types of market harm outlined
below.
120.

First, a verbatim copy is a classic non-transformative use and a substitute for theoriginal work. By operating the Website, IA competes directly with Publishers’ works in all
formats (including, without limitation, print and digital) and market segments (including, without
limitation, commercial, library, and school).
121.

Second, by providing copies of digital books for free, IA devalues the bookmarket. Consumers begin to view works as cheap and become increasingly unappreciative ofwhat it takes to produce them and unwilling to pay fair value for them.
122.

Relatedly, IA’s decision to provide free and full copies of Plaintiffs’ books,

including the Works, to anybody who wants them interferes with Plaintiffs’ relationships with45

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 46 of 53

customers and distributors, including libraries, who had already paid full value for them. The
willingness of those distributors and customers to acquire digital formats in the future isdiminished by the free distribution of Plaintiffs’ books, including the Works, on the Website.
123.

Third, public libraries are evolving to meet the changing needs of their patrons

and trying hard to remain at the center of their communities. Defendant’s Website undercuts
public libraries by disintermediating them. Harm to and loss of community support for public
libraries, in turn, hurts the Publishers, since these libraries pay for their books, which, in turn,hurts authors, who share in and depend upon compensation for their copyrights.
124.

Fourth, the Website’s .pdf and ePUB files are often of inferior quality. Authors

expect their publishers to be guardians, ensuring the high-quality of their works as delivered tothe marketplace. Websites like Open Library, thus, hurt Plaintiffs’ relations with authors.
125.

Likewise, inferior quality scans affect the Publishers’ relationships with

consumers. For example, in certain instances book scans from IA have surfaced on retailer
websites such as Amazon as offerings by sponsored third-party vendors, leading to negative
reviews on the product pages. When a consumer gives such a work a one-star review because of
the scan quality, other consumers may only focus on the negative rating, even if it has nothing to
do with the content of the work. More generally, consumers may be confused about whether the
publisher has authorized the IA scan, leading to a negative impact on the publisher’s goodwill.
126.

Fifth, IA interferes with the author’s and publisher’s right to decide which works

will be distributed in which format and at which time. For example, as noted above, some works
or authors are ill-served by the conversion of print editions into digital works, either forcommercial or artistic reasons. IA has appropriated to itself this right that belongs exclusively tothe rightsholder.

46

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 47 of 53

127.

Finally, Plaintiffs have legitimate fears regarding the security of their works bothas stored by IA on its servers and subsequently publicly displayed or transmitted to users. For
example, upon information and belief, IA has not developed and does not enforce sufficiently
rigorous DRM protocols and related logistical systems that aggregators must employ to ensurethat books appearing on their websites are not pirated or unlawfully infringed by users.
CLAIMS FOR RELIEF
FIRST CAUSE OF ACTION
Direct Copyright Infringement (17 U.S.C. § 101 et seq.)
128.

Plaintiffs repeat and reallege each and every allegation above as if fully set forth129.

The Works are original, creative, and copyrightable subject matter under the laws

herein.

of the United States.
130.

The copyrights in the Works are registered, and the Copyright Office has issued

valid Certificates of Registration for the Works.
131.

By its actions, alleged above, Defendant has infringed and will infringe the

Publishers’ copyrights in and to the Works by, inter alia, reproducing, distributing, publicly
displaying, publicly performing, and making derivative works of the Works without any
authorization or permission from Plaintiffs.
132.

Each infringement of the rights of Plaintiffs in one of the Works constitutes aseparate and distinct act of infringement.
133.

Defendant’s infringement of Plaintiffs’ copyrights, including the Plaintiffs’

Works, is willful.

47

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 48 of 53

134.

Upon information and belief, as a direct and proximate result of its wrongfulconduct, Defendant has and will obtain benefits, including, but not limited to, profits to which
Defendant is not entitled.
135.

As a direct and proximate result of Defendant’s wrongful conduct, Plaintiffs havebeen, and will continue to be, substantially and irreparably harmed in an amount not readily
capable of determination. Unless restrained by this Court, Defendant will cause further
irreparable injury to Plaintiffs.
136.

As a direct and proximate result of Defendant’s infringement, Plaintiffs areentitled to recover statutory damages, pursuant to 17 U.S.C. § 504(c), with respect to each work
infringed. Alternatively, at the election of Plaintiffs, pursuant to 17 U.S.C. § 504(b), Plaintiffs
are further entitled to recover from Defendant the damages they have sustained and will sustain,
as well as any gains, profits and advantages obtained by Defendant as a result of its acts of
infringement alleged above. At present, the amount of such damages, gains, profits, andadvantages cannot be fully ascertained by Plaintiffs.
137.

Plaintiffs are entitled to recover their attorney’s fees and costs.
SECOND CAUSE OF ACTION
Secondary Copyright Infringement (17 U.S.C. § 101 et seq.)

138.

Plaintiffs repeat and reallege each and every allegation above as if fully set forth

139.

Although it is clear that IA is directly liable for copyright infringement, Plaintiffs

herein.

also bring claims for secondary liability, in the alternative, to the extent IA attempts to evade
responsibility for its own direct liability by blaming the conduct on others, such as users of theWebsite.

48

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 49 of 53

140.

Defendant is secondarily liable under theories of contributory liability,

inducement liability, and vicarious liability for the underlying reproduction, distribution, public
display, and public performance of Plaintiffs’ Works, as well as the making of infringing
derivatives of Plaintiffs’ Works.
141.

Defendant is contributorily liable as it knows, or has reason to know, that

Plaintiffs’ Works are infringed each time Plaintiffs’ Works are scanned, uploaded, downloaded,publicly displayed, or publicly performed in connection with the Website, and it has caused
and/or materially contributed to those infringements.
142.

Defendant is also secondarily liable under a theory of inducement. Defendant is

responsible at every level for scanning copyrighted books, including the Works, uploading thescanned copies to its Website, and then distributing, displaying, and performing the works
publicly. Defendant could take simple measures to prevent further infringement, such as by notscanning books under copyright, limiting the books on the Website to works in the publicdomain, or obtaining licenses to distribute ebooks. Instead, the infringement of copyrighted
books, including Plaintiffs’ Works, is a central focus of Defendant’s business strategy.
Defendant affirmatively encourages individuals to use the Website to infringe copyright,
including by downloading digital copies of copyright protected books without a license,
including the Works.
143.

Further, Defendant is vicariously liable for copyright infringement because it has

the right and ability to supervise the infringement of its users and possesses a financial interest in
the infringement. As detailed above, Defendant has the right and ability to supervise theinfringement of Plaintiffs’ copyrighted books, including the Works. Defendant provides the sites
and facilities on which the infringing activity occur. Defendant can stop allowing users of the49Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 50 of 53

Website to download Plaintiffs’ copyrighted books, including the Works. In brief, Defendant isin charge of the Website.
144.

Defendant possesses an obvious and direct financial interest in the infringement.

The uploading and downloading of increasing numbers of copyrighted works to the Open
Library, including the Works, enhances the reputation of Defendant and its Website as acomprehensive source of free digital books. It draws more user registrations from people
wishing to download from the Website and more donations of funds and books. The infringing
files also increase the number of visitors to the Website, in turn increasing the numbers of people
who view the link to purchase books at the Defendant’s affiliate, Better World Books, which as it
acquires more books, provides them to IA for scanning. Further, Defendant obtains a direct
financial benefit by charging for the costs of scanning copyrighted books, which are thenuploaded to the Website.
145.

Each infringement of the rights of Plaintiffs in one of the Works constitutes aseparate and distinct act of infringement.
146.

Defendant’s infringement of Plaintiffs’ copyrights, including Plaintiffs’ Works, is

147.

Upon information and belief, as a direct and proximate result of its wrongful

willful.

conduct, Defendant has and will obtain benefits, including, but not limited to, profits to which
Defendant is not entitled.
148.

As a direct and proximate result of Defendant’s wrongful conduct, Plaintiffs havebeen, and will continue to be, substantially and irreparably harmed in an amount not readily
capable of determination. Unless restrained by this Court, Defendant will cause further
irreparable injury to Plaintiffs.

50

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 51 of 53

149.

As a direct and proximate result of Defendant’s infringement, Plaintiffs areentitled to recover statutory damages, pursuant to 17 U.S.C. § 504(c), with respect to each work
infringed. Alternatively, at the election of Plaintiffs, pursuant to 17 U.S.C. § 504(b), Plaintiffs
are further entitled to recover from Defendant the damages they have sustained and will sustain,
as well as any gains, profits, and advantages obtained by IA as a result of its acts of infringement
alleged above. At present, the amount of such damages, gains, profits, and advantages cannot be
fully ascertained by Plaintiffs.
150.

Plaintiffs are entitled to recover their attorney’s fees and costs.
PRAYER FOR RELIEF

WHEREFORE, Plaintiffs Hachette, HarperCollins, Penguin Random House, and Wiley,
respectfully request judgment against Defendant Internet Archive as follows:A.

Declaring that the practices of Internet Archive in connection with “Open
Library” constitute willful copyright infringement;

B.

Issuing a preliminary and permanent injunction enjoining Internet Archive, and its
agents, servants, employees, attorneys, successors and assigns, and all persons,firms and corporations acting in active concert or participation with it, fromdirectly or indirectly reproducing, distributing, publicly displaying, creating
derivative works, otherwise infringing, or causing, enabling, facilitating,encouraging, or inducing the reproduction, distribution, public display, creation ofderivative works, or other infringement of, any of the respective copyrights
owned or exclusively controlled, in whole or in part, by Plaintiffs, whether now inexistence or hereinafter created, and ordering that all unlawful copies be
destroyed;51

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 52 of 53

C.

Entering judgment for Plaintiffs against Internet Archive for statutory damages inan amount based upon Internet Archive’s willful acts of infringement of theWorks, as alleged above, pursuant to the Copyright Act, 17 U.S.C. §§ 101, et seq.;

D.

Alternatively, ordering Internet Archive to render a full and complete accounting
to Plaintiffs of Internet Archive’s profits, gains, advantages, or the value ofbusiness opportunities received from the foregoing acts of infringement of theWorks and entering judgment for Plaintiffs against Internet Archive for all
damages suffered by Plaintiffs and for any profits or gain by Internet Archive
attributable to the infringements alleged above of Plaintiffs’ copyrights inamounts to be determined at trial;

E.

Awarding Plaintiffs the costs and disbursements of this action, including
reasonable attorney’s fees, pursuant to 17 U.S.C. § 505;

F.

Awarding Plaintiffs pre-judgment and post-judgment interest, to the fullest extent
available, on the foregoing; andG.

Granting such other further and different relief as this Court deems just andproper.
DEMAND FOR JURY TRIAL

Pursuant to Federal Rule of Civil Procedure 38, Plaintiffs demand a jury trial on all issues
so triable in this action.
Dated: June 1, 2020
New York, New YorkDAVIS WRIGHT TREMAINE LLP/s/ Elizabeth A. McNamara
Elizabeth A. McNamara
Linda Steinman

52

Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 53 of 53

John M. Browning
Meredith I. Santana
1251 Avenue of the Americas, 21st Floor
New York, NY 10020
Phone: (212) 489-8230
Email: lizmcnamara@dwt.com
lindasteinman@dwt.com
jackbrowning@dwt.com
meredithsantana@dwt.com
OPPENHEIM + ZEBRAK, LLP
Matthew J. Oppenheim
Scott A. Zebrak (pro hac vice motion forthcoming)
4530 Wisconsin Avenue, NW, 5th Floor
Washington, DC 20016
Phone: (202) 480-2999
Email: matt@oandzlaw.com
scott@oandzlaw.com
Attorneys for Hachette Book Group, Inc.,
HarperCollins Publishers LLC, John Wiley & Sons,
Inc., and Penguin Random House LLC

53

Case 1:20-cv-04160 Document 1-1 Filed 06/01/20 Page 1 of 4

EXHIBIT A

Case 1:20-cv-04160 Document 1-1 Filed 06/01/20 Page 2 of 4

AUTHOR

TITLE

1
2
3
4

Ahern, Cecelia
Albertalli, Becky
Applegate, Katherine
Bacigalupi, Paolo

5

Brown, Brené

6
7
8
9
10
11

Brown, Pierce
Brown, Sandra
Brown, Sandra
Bryson, Bill
Bryson, Bill
Cabot, Meg

12

Carter, Les

13
14
15
16
17
18
19
20
21
22

Catling, Patrick Skene
Cisneros, Sandra
Conti, Peter; Harris, Peter
Corey, James S.A.
Corey, James S.A.
Crossan, Sarah
Crossan, Sarah
Danforth, Emily M.
Demuth, Patricia
Dugoni, Robert

23

Epstein, David J.

24

Evanovich, Janet

25

Fisher, Kenneth L.

26
27
28
29
30

Fitzpatrick, Huntley
Flynn, Gillian
Forman, Gayle
Gardner, Lisa
Giddings, Anita; Clifton, Sherry Stone

31

Gilbert, Elizabeth

32

Gladwell, Malcolm

33
34
35
36
37
38

Gladwell, Malcolm
Gladwell, Malcolm
Gladwell, Malcolm
Golding, William
Gordon, Jon
Grabenstein, Chris

PS, I Love You
Simon vs. the Homo Sapiens Agenda
The One and Only Ivan
Ship Breaker
Daring Greatly: How the Courage to Be Vulnerable Transforms the
Way We Live, Love, Parent, and Lead
Golden Son
Best Kept Secrets
The Witness
A Short History of Nearly Everything
A Short History of Nearly Everything: Special Illustrated Edition
The Bride Wore Size 12
Enough About You, Let's Talk About Me: How to Recognize andManage the Narcissists in Your Life
The Chocolate Touch
The House on Mango Street
Commercial Real Estate Investing for Dummies
Leviathan Wakes
Caliban's War
BreatheResist
The Miseducation of Cameron Post
Who is Bill Gates?
The Jury Master
The Sports Gene: Inside the Science of Extraordinary Athletic
Performance
Foul PlayThe Only Three Questions that Still Count: Investing by Knowing
What Others Don't
My Life Next Door
Gone GirlIf I Stay
Fear Nothing
Oil Painting for Dummies
Eat, Pray, Love: One Woman's Search for Everything Across Italy,
India and Indonesia
David and Goliath: Underdogs, Misfits, and the Art of Battling
GiantsWhat the Dog Saw
Blink: The Power of Thinking Without Thinking
Tipping Point: How Little Things Can Make a Big Difference
Lord of the Flies
The Energy Bus
Escape from Mr. Lemoncello's Library39

Graham, Benjamin

The Intelligent Investor

40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62

Grant, Adam M.
Grisham, John
Grisham, John
Grisham, John
Hall, Michael
Herman, Gail
Hiaasen, Carl
Hurston, Zora Neale
Jahren, HopeJames, Marlon
Jance, J.A.
Jance, J.A.
Kalanithi, Paul
Kate, Lauren
Kelly, Martha Hall
Klay, Phil
Krakauer, Jon
Kraynak, Cecie; Kraynak, Joe
Kuhn, Karl F.
L'Amour, Louis
Larson, Edward J.
Larson, Erik
Lazarus, William P.; Sullivan, Mark

Give and Take: a Revolutionary Approach to Success
The Innocent Man: Murder and Injustice in a Small Town
Theodore Boone: Kid Lawyer
Theodore Boone: The Accused
Red: A Crayon's Story
Who was Jackie Robinson?
Scat
Their Eyes Were Watching God
Lab Girl
A Brief History of Seven Killings
Judgment Call
Dance of the Bones
When Breath Becomes Air
FallenLilac Girls
Redeployment
Into the Wild
Spanish All-in-One for Dummies
Basic Physics
Hondo
The Return of George Washington
Dead Wake: the Last Crossing of the Lusitania
Comparative Religion for Dummies

Page 1COPYRIGHT
REGISTRATION NUMBER
TX0005895532
TX0008021205
TX0007555692
TX0007254031

Hachette
HarperCollins
HarperCollins
Hachette

TX0007634717

Penguin Random House

TX0008016409
TX0002539419
TX0005069323
TX0005819304
TX0006307243
TX0007783913

Penguin Random House
Hachette
Hachette
Penguin Random House
Penguin Random House
HarperCollins

TX0006325485

Wiley

A00000069921, RE0000055493
TX0003739076
TX0007025526
TX0007439248
TX0007617575
TX0007683648
TX0007793191
TX0007538437
TX0007733894
TX0006525282

HarperCollins
Penguin Random House
Wiley
Hachette
Hachette
HarperCollins
HarperCollins
HarperCollins
Penguin Random House
Hachette

TX0007771878

Penguin Random House

TX0002495088

HarperCollins

TX0007513212

Wiley

TX0007565514
TX0007548935
TX0006970259
TX0007509675
TX0007089078

Penguin Random House
Penguin Random House
Penguin Random House
Penguin Random House
Wiley

TX0006375345

Penguin Random House

TX0007814165

Hachette

TX0007118941
TX0006120724
TX0005861769
A00000207331, RE0000165908
TX0006916245
TX0007770723
A33116, R661874, A411612,
RE369865, A141550, RE127674
TX0007685330
TX0006447726
TX0007198794
TX0007558149
TX0008019464
TX0007326367
TX0006920819
A108603, R357931
TX0008263021
TX0007950885
TX0007580015
TX0008123060
TX0008170188
TX0007162746
TX0008288854
TX0007856163
TX0004242389
TX0007152269
TX0004294866
A00000113543, RE0000107198
TX0007922775
TX0008257868
TX0007241296

Hachette
Hachette
Hachette
Penguin Random House
Wiley
Penguin Random House

PUBLISHER

HarperCollins
Penguin Random House
Penguin Random House
Penguin Random House
Penguin Random House
HarperCollins
Penguin Random House
Penguin Random House
HarperCollins
Penguin Random House
Penguin Random House
HarperCollins
HarperCollins
Penguin Random House
Penguin Random House
Penguin Random House
Penguin Random House
Penguin Random House
Wiley
Wiley
Penguin Random House
HarperCollins
Penguin Random House
Wiley

Case 1:20-cv-04160 Document 1-1 Filed 06/01/20 Page 3 of 4
63
64

Lehane, Dennis
Lencioni, Patrick

65

Lencioni, Patrick

66

Lencioni, Patrick

World Gone By
The Five Dysfunctions of a Team: a Leadership Fable
The Advantage: Why Organizational Health Trumps Everything
Else in Business
Overcoming the Five Dysfunctions of a TeamThe Three Signs of a Miserable Job: a Fable for Managers (andTheir Employees)

TX0008039819
TX0005757057

HarperCollins
Wiley

TX0007503919

Wiley

TX0006165385

Wiley

TX0007006036

Wiley

TX0007161860

Wiley

TX0008836048

Hachette

AI-2945, R678216
A00000203269, AI0000004618,
RE0000172597
TX0007477993
TX0007946421
TX0007400734
TX0006556613
TX0007254399
TX0007425933
A00000904465, RE0000921551
A00000222644, RE0000785522
TX0007846518
TX0007690991, VA0001862482

HarperCollins

Penguin Random House
Penguin Random House
Penguin Random House
Penguin Random House
Wiley
Penguin Random House
Penguin Random House
Penguin Random House
Penguin Random House
HarperCollins

67

Lencioni, Patrick

68

Lencioni, Patrick

69

Levine, Barry

70

Lewis, C. S.

Getting Naked: a Business Fable About Shedding the Three Fears
that Sabotage Client Loyalty
All the President's Women: Donald Trump and the Making of a
Predator
The Lion, the Witch, and the Wardrobe

71

Lewis, C. S.

The Magician's Nephew

72
73
74
75
76
77
78
79
80
81

Lu, Marie
Mandel, Emily St. John
Martin, George R. R.
McCarthy, Cormac
Miller, Donalyn
Morgenstern, Erin
Morrison, Toni
Morrison, Toni
Nelson, Marilyn
O’Connor, Jane; Glasser, Robin

LegendStation Eleven
A Dance with Dragons
The Road
The Book Whisperer
The Night Circus
Song of Solomon
The Bluest Eye
How I Discovered Poetry
Fancy Nancy: Too Many Tutus

82
83
84
85
86
87
88
89
90
91
92
93
94
95

O’Connor, Jane; Glasser, Robin
Palmer, Parker J.
Park, Barbara
Patchett, Ann
Patterson, James
Patterson, James
Patterson, James; Grabenstein, Chris
Peirce, Lincoln
Peirce, Lincoln
Peirce, Lincoln
Pinker, Steven
Plath, Sylvia
Pratchett, Terry
Redwine, C. J.

TX0008070920, VA0001967523
TX0005080321
TX0005623738
TX0008316769
TX0007593552
TX0007953870
TX0007629856
TX0007908851
TX0007715101
TX0007521998
TX0007454376
A275047
TX0005702246
TX0007683441

HarperCollins
Wiley
Penguin Random House
HarperCollins
Hachette
Hachette
Hachette
HarperCollins
HarperCollins
HarperCollins
Penguin Random House
HarperCollins
HarperCollins
HarperCollins

96

Ritchhart, Ron

TX0007397014

Wiley

97
98

Rohr, Richard
Salinger, J. D.

Fancy Nancy: Super Secret Surprise Party
Let Your Life Speak: Listening for the Voice of Vocation
Junie B., First Grader: Boss of Lunch
CommonwealthMiddle School, the Worst Years of My Life
Invisible
I Funny: A Middle School Story
Big Nate: Mr. Popularity
Big Nate: Genius ModeBig Nate Goes for Broke
The Better Angels of Our Nature: Why Violence has Declined
The Bell Jar
Night Watch
Defiance
Making Thinking Visible: How to Promote Engagement,
Understanding, and Independence for All Learners
Falling Upward: a Spirituality for the Two Halves of Life
The Catcher in the Rye

TX0007368227
A00000056070, RE0000018341

Wiley
Hachette

99

Salinger, J. D.

Nine Stories

TX0000625326, RE0000130457

Hachette

100

Salinger, J. D.

Franny and Zooey

A00000591015, RE0000438737

Hachette

101

Salinger, J. D.

Raise High the Roof Beam, Carpenters, and Seymour: An
Introduction

B00000776866, RE0000340311,
Hachette
B00000564939, RE0000157487

102

104
105
106
107
108
109
110
111

Sandford, John
Schaefer, Charles E.; DiGeronimo,
Theresa Foy
Schneider, Robyn
Semple, Maria
Silberman, Steve
Snicket, Lemony
Snicket, Lemony
Stewart, Trenton Lee
Stewart, Trenton Lee
Stewart, Trenton Lee

112

Stone, Douglas

113
114
115

Strout, Elizabeth
Tahir, Sabaa
Turnage, Sheila

116

van der Kolk, Bessel A.

117
118
119
120

Wiesel, Elie
Wilder, Laura Ingalls
Wilder, Laura Ingalls
Wilder, Laura Ingalls

103

Phantom Prey
TX0007189422
Ages and Stages: a Parent's Guide to Normal Childhood
TX0005277840
Development
Extraordinary Means
TX0008104539
Today Will Be Different
TX0008324577
Neurotribes: the Legacy of Autism and the Future of Neurodiversity TX0008202678
Who Could That Be at This Hour?
TX0007615258
When Did You See Her Last?
TX0007818551
The Extraordinary Education of Nicholas Benedict
TX0007552463
The Mysterious Benedict Society
TX0006577654
The Mysterious Benedict Society and the Perilous Journey
TX0007018489
Thanks for the Feedback: the Science and Art of Receiving
Feedback (Even When it is Off-Base, Unfair, Poorly Delivered, and TX0007885277
Frankly, You're Not in the Mood)
The Burgess Boys
TX0007729095
An Ember in the Ashes
TX0008301050
Three Times Lucky
TX0007558141
The Body Keeps the Score: Brain, Mind, and Body in the Healing
TX0007949079
of Trauma
Open Heart
TX0007647478
Little House in the Big Woods
A50595, R240866
Little House on the Prairie
A86517, R321069
Farmer Boy
A67106, R270763

Page 2HarperCollins

Penguin Random House
Wiley
HarperCollins
Hachette
Penguin Random House
Hachette
Hachette
Hachette
Hachette
Hachette
Penguin Random House
Penguin Random House
Penguin Random House
Penguin Random House
Penguin Random House
Penguin Random House
HarperCollins
HarperCollins
HarperCollins

Case 1:20-cv-04160 Document 1-1 Filed 06/01/20 Page 4 of 4
121
122
123
124
125
126
127

Winspear, Jacqueline
Winspear, Jacqueline
Winspear, Jacqueline
Woofenden, Ian
Wouk, Herman
Wouk, Herman
Zuckerman, Gregory

A Dangerous Place
Journey to Munich
Elegy for Eddie
Wind Power for Dummies
The Winds of War
The Caine Mutiny: A Novel of World War II
The Man Who Solved the Market

Page 3

TX0008047542
TX0008265362
TX0007508297
TX0007154083
A00000278899, RE0000652979
A00000053612, RE0000018386
TX0008865827

HarperCollins
HarperCollins
HarperCollins
Wiley
Hachette
Hachette
Penguin Random House