Case 1:20-cv-04160-JGK-OTW Document 214-1 Filed 08/11/23 Page 1 of 6

EXHIBIT A

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK----------------------------------------- X
HACHETTE BOOK GROUP, INC.,
HARPERCOLLINS PUBLISHERS LLC, JOHN WILEY :SONS, INC., and PENGUIN RANDOM HOUSE LLC,:Plaintiffs,:-against:
INTERNET ARCHIVE and DOES 1 through 5,inclusive,:Case No. 1:20-cv-04160-JGKDefendants.
:----------------------------------------- X[PROPOSED] CONSENT JUDGMENT AND PERMANENT INJUNCTION SUBJECTTO RESERVATION OF RIGHT OF APPEAL
WHEREAS, on June 1, 2020, Hachette Book Group, Inc., HarperCollins Publishers LLC,
John Wiley & Sons, Inc., and Penguin Random House LLC (the “Plaintiffs”) commenced thisaction (the “Action”) against Internet Archive alleging copyright infringement of literary works,
namely unauthorized creation of ebooks from print copies of books and public display,
distribution, and performance of the ebooks through www.archive.org and/orwww.openlibrary.org; andWHEREAS, on March 24, 2023, the Court issued an “Opinion and Order” in the Action(ECF No. 188) (“Opinion and Order”) granting the Plaintiffs’ motion for summary judgment andholding the Internet Archive liable for copyright infringement of the Plaintiffs’ works in suit;
WHEREAS, prior to the entry hereof, the Internet Archive has worked in active concertand participation with the Open Library of Richmond, the owner of physical books scanned andmade available to the public by the Internet Archive on its website under its “Books to Borrow”
collection;
WHEREAS, in the interest of efficiency and judicial economy, Plaintiffs and Internet
Archive (the “Parties”) have agreed to a stipulated monetary judgment payment in the Action
under and subject to the terms set forth in a separate confidential agreement (“MonetaryJudgment Payment”), expressly conditioned upon the Internet Archive’s reservation of its rightto appeal the finding of liability for copyright infringement set forth in the Opinion and Orderand as incorporated into any final judgment; andWHEREAS, in the interest of efficiency and judicial economy, Plaintiffs and the Internet
Archive stipulate to the declaratory relief and terms of a permanent injunction set forth below
expressly conditioned upon Internet Archive’s reservation of its right to appeal the finding of

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liability for copyright infringement set forth in the Opinion and Order and as incorporated into
any final judgment and its right to appeal the Permanent Injunction on the ground that theInternet Archive should not have been held liable for copyright infringement and as further
described below.
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED asfollows:A.

This Court has subject matter jurisdiction over this action, which arises under theCopyright Act of 1976, 17 U.S.C. §§101 et seq, pursuant to 28 U.S.C. §§ 1331
and 1338.

B.

Judgment is entered for Plaintiffs and against Defendant on Plaintiffs’ claims
against Defendant for copyright infringement under 17 U.S.C. §501.

C.

The activities of the Internet Archive in engaging in “controlled digital lending”
of the 127 Works in Suit as further described in the Opinion and Order constitutecopyright infringement;

D.

The activities of the Internet Archive in engaging in the “National Emergency
Library” in connection with the 127 Works in Suit as further described in theOpinion and Order constitute copyright infringement; andE.

The Court hereby enters the following permanent injunction (the “PermanentInjunction”):
1.

“Covered Book” shall mean any in-copyright book or portion thereof,
whether in existence as of the date hereof or later created, in which anyPlaintiff (or any subsidiary or corporate affiliate of a Plaintiff) (a) owns orcontrols an exclusive right under the Copyright Act and makes the titlecommercially available for sale or license [in any format OR in any
electronic text format]; and (b) has provided notice to the Internet Archive
regarding such title by sending the Internet Archive a machine readable
catalog in a standardized form identifying such commercially available
titles (including any updates thereto in the Plaintiffs' discretion), or othersimilar form of notification, once 14 days have elapsed since the receipt ofsuch notice. A “Covered Book” includes all in-copyright editions of suchtitle.

2.

Subject to the terms of Paragraphs 4, 5 and 6 below, the Internet Archive,
its officers, agents, servants, employees, and attorneys, and other persons
who are in active concert or participation with such persons (collectively,
the “Internet Archive Parties” and each individually an “Internet ArchiveParty”), are permanently enjoined and restrained from engaging in any of
the following acts in, from or to the United States:a)the distribution to the public, public display, and/or publicperformance, of Covered Books in, from or to the United States inCase 1:20-cv-04160-JGK-OTW Document 214-1 Filed 08/11/23 Page 4 of 6

any digital or electronic form, including without limitation on theInternet Archive website (collectively “UnauthorizedDistribution”);b)

the reproduction of Covered Books for Unauthorized Distribution;c)the creation of derivative works of the Covered Books for
Unauthorized Distribution;d)inducing, or knowingly and materially contributing to, any
individual or entity’s infringing reproduction, public distribution,
public display and/or public performance of Covered Books in any
digital or electronic form, as those terms are used in the law ofcontributory copyright infringement applied by the Second Circuit;
and/ore)profiting from another individual or entity’s infringing
reproduction, public distribution, public display and/or public
performance of Covered Books in any digital or electronic form
while declining to exercise a right to stop or limit it, as those terms
are used in the law of vicarious copyright infringement applied by
the Second Circuit.

3.

This Permanent Injunction is effective immediately and shall not be stayedpending appeal of the Opinion and Order. Internet Archive shall provide acopy of this Permanent Injunction to each of its officers, agents, servants,
employees, and attorneys. Internet Archive shall also provide a copy ofthis Permanent Injunction to Open Library of Richmond, libraries whose
print books have been counted by Internet Archive toward its maximum
lendable digital copies on Internet Archive’s website, and all persons in
active concert or participation with Internet Archive or its officers, agents,servants, employees, or attorneys in connection with the Covered Books.

4.

The Internet Archive Parties shall not be in violation of the terms ofParagraph 2 with respect to:a)Any uses to which exceptions and limitations set forth in 17 U.S.C.
§ 108, and §§ 110-122 are properly applicable (with Plaintiffs
reserving all rights to contest such applicability);b)

An Internet Archive Party’s use of any Covered Book for whichsuch party obtains express written authorization for that use from aparty that owns or controls the applicable rights to such Covered
Book, provided such authorization is in force and valid at the timeof such party’s use of the Covered Book;c)

An Internet Archive Party’s use of Covered Books for the purposeof accessibility for “eligible persons,” as that term is defined in 17Case 1:20-cv-04160-JGK-OTW Document 214-1 Filed 08/11/23 Page 5 of 6

U.S.C. § 121(d)(3), provided that such use meets the statutory
conditions of 17 U.S.C §§ 121 or 121A, or is consistent with fairuse, for example as set forth in Authors Guild v. Hathitrust, 755
F.3d 87 (2d Cir. 2014); ord)

5.

Notwithstanding the foregoing definition of a Covered Book as
including a portion thereof, an Internet Archive Party’s use of
Covered Books for the purpose of distribution, public display, orpublic performance of short portions of a Covered Book, provided
that such use is consistent with fair use, for example as set forth inAuthors Guild v. Google, Inc., 804 F.2d 202 (2d Cir. 2015) andAndy Warhol Foundation v. Goldsmith, 143 S. Ct. 1258 (2023).

By way of clarification:a)nothing herein constitutes a grant to the Internet Archive Parties or
any other person of a license, right, permission, consent, orauthorization with respect to any copyrighted works, whether any
Covered Books or otherwise;b)nothing herein means that acts outside the scope of the specificprohibitions in Paragraph 2 are non-infringing or excused under
any of the exceptions or limitations set forth in the United States
Copyright Act or that Plaintiffs waive any claims regarding suchacts; andc)

nothing herein impacts any right of Plaintiffs to seek to recoverdamages under 17 U.S.C. § 504, or costs, including attorneys' fees,
under 17 U.S.C. § 505.

6.

By way of further clarification and without modifying Paragraph 2(d) or2(e) of this Permanent Injunction, nothing herein (i) limits any Internet
Archive Party’s ability to assert that it is not liable for monetary relief, orinjunctive or other equitable relief, with respect to any infringement ofcopyright that arises from acts described in 17 U.S.C. § 512(a)-(e)(“Section 512”), or (ii) enjoins any act which qualifies for a limitation on
remedies under Section 512.

7.

Nothing herein limits the Internet Archive’s right to appeal the finding ofliability for copyright infringement as addressed in the Opinion and Orderand as incorporated into any final judgment.

8.

Nothing herein limits the Internet Archive’s right to appeal this Permanent
Injunction on the ground that Internet Archive should not have been held
liable for copyright infringement. Further, nothing herein limits any Party
from appealing the Court’s resolution of the Parties’ dispute concerningwhether the definition of Covered Book in Paragraph E(1) of this Consent

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Judgment pertains to books “in any format” or only “in any electronic textformat.”
9.

Internet Archive shall provide a sworn declaration of compliance with thisCourt’s Permanent Injunction within 30 days of its issuance.

10.

During the first 60 days following the entry of this Permanent Injunction,in the event that any Plaintiff believes that any enjoined party is not incompliance with this Permanent Injunction and wishes to seek appropriate
relief from the Court, such Plaintiff shall first provide notice to theInternet Archive Party of its intent to file for relief 7 days prior to such
filing, except in instances in which the Covered Book was initiallypublished within five years preceding such notice. Such notice to theInternet Archive Party does not need to identify individual Covered
Books. This provision has no effect after the expiration of the 60 day
period.

11.

This Court shall retain exclusive and continuing jurisdiction over theparties and over the subject matter of this Action for purposes ofinterpreting, implementing, and enforcing the Permanent Injunction.

12.

Pursuant to the Opinion and Order, the Clerk of the Court shall enterjudgment for Plaintiffs. The Clerk of the Court is directed to close thiscase.

APPROVED AND ORDERED THIS ___ day of ___________, 2023_____________________________
John G. Koeltl, U.S.D.J.