Case 1:20-cv-04160-JGK-OTW Document 158-2 Filed 08/12/22 Page 1 of 30

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORKHACHETTEBOOK
GROUP,
INC., Case No. 1:20-CV-04160-JGK
HARPERCOLLINS PUBLISHERS LLC, JOHNWILEY & SONS, INC., and PENGUINRANDOM HOUSE LLC,
Plaintiffs,v.
INTERNET ARCHIVE and DOES 1 through 5,
inclusive,
Defendants.

BRIEF OF AMICUS CURIAE IN SUPPORT OF PLAINTIFFS HACHETTE BOOK
GROUP, INC., HARPERCOLLINS PUBLISHERS LLC, JOHN WILEY & SONS, INC.,
AND PENGUIN RANDOM HOUSE LLC’S MOTION FOR SUMMARY JUDGMENT
COWAN, DEBAETS, ABRAHAMS& SHEPPARD LLP
Nancy E. Wolff
Alexander Gigante
Elizabeth Safran
41 Madison Avenue, 38th Floor
New York, New York 10010
Tel.: (212) 974-7474
Fax: (212) 974-8474
Counsel for Amicus Curiae

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TABLE OF CONTENTSTABLE OF AUTHORITIES .......................................................................................................... ii
STATEMENT OF INTEREST ....................................................................................................... 1
SUMMARY OF THE ARGUMENT ............................................................................................. 2
ARGUMENT .................................................................................................................................. 4I.

II.

DEFENDANT’S PRACTICE IS NOT SANCTIONED UNDER COPYRIGHT LAW.... 4
A.

Defendant’s Mass Digitization And Distribution Of Full Books
Is Not A Fair Use .................................................................................................... 5

B.

Defendant’s Practice is Not Allowed Under the First-Sale Doctrine ..................... 8

C.

Section 108 Does Not Support Defendant’s Practice ............................................. 9

DEFENDANT’S PRACTICE, IF ALLOWED, WOULD DEVASTATEOTHER CREATIVE INDUSTRIES ................................................................................ 11
A.

III.

Creative Industries Have Undertaken Substantial Efforts Towards Digitization
And Would Be Harmed By Sanctioning Defendant’s Practice ............................ 12

ONLY CONGRESS IS EMPOWERED TO DECIDE WHETHER AND UNDER
WHAT CIRCUMSTANCES TO EXPAND EXCEPTIONS THAT ALLOW NONRIGHTSHOLDERS TO DIGITIZE AND DISTRIBUTE WORKS ................................ 17
A.

Congress Alone Has the Authority to Modify Section 108’s Reproduction
Protections for Libraries and Archives ................................................................. 18

B.

Congress Alone Has the Authority to Consider Expanding the First-Sale
Doctrine to Permit Digitization and Distribution of Works.................................. 21

CONCLUSION ............................................................................................................................. 22iCase 1:20-cv-04160-JGK-OTW Document 158-2 Filed 08/12/22 Page 3 of 30

TABLE OF AUTHORITIESPage(s)Cases
A&M Records, Inc. v. Napster, Inc.,284 F.3d 1091 (9th Cir. 2002) ............................................................................................ 13, 14
Association of Am. Publishers, Inc. v. Frosh,2022 WL 484926 (D. Md. Feb. 16, 2022) ................................................................................ 21
Authors Guild v. Google,Inc.,804 F.3d 202 (2d Cir. 2015) ....................................................................................................... 5
Authors Guild, Inc. v.HathiTrust,
755 F.3d 87 (2d Cir. 2014) ......................................................................................................... 5
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994) ............................................................................................................ 5, 6, 7
Capitol Recs., LLC v. ReDigi, Inc.,
910 F.3d 649 (2d Cir. 2018),
cert. denied, 139 S. Ct. 2760 (2019) ....................................................................................... 3, 8
Close v. Sotheby’s, Inc.,894 F.3d 1061 (9th Cir. 2018) .................................................................................................... 8
Harper & Row Publishers, Inc. v. Nation Enters.,
471 U.S. 539 (1985) .................................................................................................................... 4
McGucken v. Pub Ocean Ltd.,
2022 WL 3051019 (9th Cir. 2022) ............................................................................................. 5
Midway Mfg. Co. v. Artic Int’l, Inc.,704 F.2d 1009 (7th Cir. 1983) .................................................................................................... 7
U.S. v. Kozeny,
541 F.3d 166 (2d Cir. 2008) ....................................................................................................... 7
Statutes
17 U.S.C. § 107 ........................................................................................................................... 5, 8
17 U.S.C. § 108 ...................................................................................................................... passim
17 U.S.C. § 109 ............................................................................................................................... 8ii

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U.S. Const. art. I, § 8, cl. 8 ............................................................................................................ 12
Other Authorities
Alicia Wallace, Covid Hit Nashville Hard. Now the Performing Arts Are Staging
a Comeback, FOX 55 News (June 12, 2022)............................................................................ 18
Alison Flood, Internet Archive Accused of Using Covid-19 as ‘An Excuse for Piracy’,
Guardian (Mar. 30, 2020) ......................................................................................................... 18
Brief of Screen ActorsGuild-American Fede,ration of Television and Radio Artists, Directors Guild ofAmerica, Inc. et al.
as Amici Curiae in Support of Petitioners,
American Broad. Cos., Inc. v. Aereo Inc.,
2014 WL 880972 (2014) ............................................................................................... 15, 16, 21
Chris Melore, Libraries are More Popular Than ever – Even as People Borrow
Fewer Books, Study Finds (Apr. 5, 2022) ................................................................................ 11
Daniel A. Gross, The Suprisingly Big Business of Library e-Books,
New Yorker (Sept. 2, 2021) ...................................................................................................... 11David Newhoff, Why Internet Archive is in Legal Trouble and Deserves to Be,
The Illusion of More (July 18, 2022) ........................................................................................ 12
Gabriela Pereira, An Internet Abomination: There’s No Such thing as“Free Books”, diyMFA (Mar. 31, 2020) ............................................................. 10
Jennifer Wilber, A Brief History of eBooks, TurboFuture (Dec. 28, 2020) ................................. 10
Michael D. Smith, The Truth About Piracy, Technology Policy Institute (Feb. 2, 2016)............ 17
New Report Illustrates How Modern Record Labels Remade Themselves in
the Streaming Era, Musonomics, ............................................................................................ 14
Richard Romano, eBook Usage in U.S. Public Libraries: Freading Sixth
Annual Survey (LibraryJournal) (2015) ................................................................................... 10
U.S. Copyright Office, Section 108 of Title 17: A Discussion Document of theRegister of Copyrights 9 (2017) ............................................................................................... 19
U.S. Sales Database, RIAA........................................................................................................... 13
The American Motion Picture And Television Industry Creating Jobs,
Trading Around the World, MPA (Nov. 2021) ........................................................................ 14
Video Games in the 21st Century: The 2020 Economic Impact Report....................................... 16iii

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What Do We Know About 2020 Movie & TV Piracy Trends Worldwide,
Alliance for Creativity and Entertainment ................................................................................ 15
What is the Mechanical Licensing Collective (MLC)?, SongTrust .............................................. 14iv

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STATEMENT OF INTEREST1
The Copyright Alliance is dedicated to promoting and protecting the ability of creative
professionals to earn a living from their creativity. It is a nonprofit, nonpartisan 501(c)(4) public
interest and educational organization and represents the copyright interests of over 2 million
individual creators and over 15,000 organizations across the entire spectrum of creative industries,
including authors, songwriters, musical composers and recording artists, graphic and visual artists,
photographers, journalists, documentarians, screen, television and filmmakers, and softwaredevelopers. The Copyright Alliance’s membership encompasses these individual creators andinnovators, creative union workers, and small businesses in the creative industry, as well as theorganizations and corporations that support and invest in them. The livelihoods of this diverse
array of creators and companies depend on the exclusive rights guaranteed by copyright law.
The Copyright Alliance’s members rely heavily on copyright law to protect andcommercialize their works, which in turn incentivizes the creation of new works and promotes the
progress of the arts. The Copyright Alliance and its members have a strong interest in the proper
application of copyright law, including with respect to Defendant Internet Archive (“Defendant”)’s practice of digitizing and distributing entire published books to the public for free and withoutauthorization. While Defendant’s infringing activity is already harming existing markets for books,
if the practice expands to other copyrighted works, such as music, film, television, video games,
and the visual arts, it would cause widespread harm to all creative professionals and undermine

1

No counsel for any party authored this brief in whole or in part, and no party or counsel for any party made a monetarycontribution intended to fund the preparation or submission of this brief. Only amicus curiae or their counsel madesuch a monetary contribution that was intended to fund preparing or submitting this brief. Some Copyright Alliancemembers are, or are affiliates of, Plaintiffs in this matter.

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the very purpose of copyright.
The Copyright Alliance submits this amicus brief in support of Plaintiffs Hachette Book
Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House
LLC’s (“Plaintiffs”) Motion for Summary Judgment, see Dkt. No. 87, and to address the broadreaching legal and practical consequences of Defendant’s so-called “Controlled Digital Lending”2
on creators and owners of copyrighted works. Defendant’s activity threatens not only books, thepublishing industry, and the livelihoods of authors and book publishers, but all other types of
copyrighted works, creative professionals, and creative industries. Permitting Defendant to scanand distribute large collections of digitized versions of copyrighted works to any user anywhere
for free would undermine existing licensing markets and strip creators and copyright owners of
their statutory rights to commercialize and control their works.
The Copyright Alliance also submits this brief to raise policy reasons that dictate a rejectionof the manufactured expansion of copyright law that Defendant advances in defense of its
unauthorized reproduction, display, and distribution of full versions of copyright protected works.3

SUMMARY OF THE ARGUMENT
Defendant’s arguments are contrary to the Copyright Act’s (the “Act”) text and espouse a
distorted theory of fair use. While Defendant cloaks its unauthorized scanning and distribution of2

While Defendant purports to replace one physical copy with a digital copy under what it calls Controlled Digital

Lending, the lending is not in fact controlled. Defendant admits that it permitted unrestricted distribution of works
during the pandemic and is amassing large quantities of books in order to digitize multiple copies of works that are in
copyright and commercially available by publishers and authors. See Plaintiff’s Complaint (“Cmpl.”) at 4–5.
3

Plaintiffs have consented to the filing of this brief. Defendant Internet Archive has not objected to the Copyright

Alliance’s request for consent to file.

2

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copyrighted books as serving the public good, there is no legal support for its practice undercopyright law, and that the consequences of its activity will cause long-term harm to the creationof new works that enrich our culture. Defendant’s practice of wholesale scanning of physical works
does not fit within the bounds of fair use because the works created by this practice serve the exact
same purpose as the works they infringe. Nor does the first-sale doctrine under §109 to support
Defendant’s position, as the doctrine does not permit a physical work to be digitized anddistributed. See Capitol Recs., LLC v. ReDigi, Inc., 910 F.3d 649, 659–63 (2d Cir. 2018), cert.
denied, 139 S. Ct. 2760 (2019). Likewise, the limited reproduction rights granted to libraries andarchives under §108 does not cover Defendant’s wholesale copying and digital distributions.
Defendant’s pursuit of its own policy objectives does not justify its blatant disregard of the plain
language of the Act and related caselaw.
Moreover, while Defendant purports to provide the public with content it wants in theformat it wants, the public already has access to lawful digital and print versions of books, which
can be lawfully licensed, purchased, and borrowed from local libraries. Instead of supportingpreservation or the distribution of works under the clearly limited terms of §108, Defendant’s
practice, if sustained, will hinder the ability of authors, publishers, and other creators tocommercialize existing works and create new ones. By flooding the market with free alternatives
and usurping the market for eBooks and other creative works, namely music, film, video games,
and visual arts in digital format, Defendant would destroy incentives to create and distribute newworks to the public and jeopardize entire professional classes of creators.
Summary Judgment in favor of Defendant that condones its practices would have farreaching effects beyond the publishing industry and would threaten to damage, if not destroy,
entire markets that are necessary to support the development of creative works. It may start here

3

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with books, but by judicial extension, could quickly threaten motion pictures, music, software,video games, and other works that enrich our society. For example, the music and film industries
have heavily invested in providing the public with content in a digital format that can be listened
to or viewed from any device, anytime and anywhere. The catalog of music and film available indigital format is not limited to works “born digital” but includes works from back catalogs ofanalog music and film productions that have been carefully digitized and preserved and are now
available in the marketplace for the public to stream, license, or buy. This usurpation ofrightsholders’ exclusive rights of reproduction and distribution causes harm as it erodes existing
markets, which runs expressly contrary to the intent of copyright. See Harper & Row Publishers,
Inc. v. Nation Enters., 471 U.S. 539, 558 (1985) (“[I]t should not be forgotten that the Framers
intended copyright itself to be the engine of free expression. By establishing a marketable right tothe use of one’s expression, copyright supplies the economic incentive to create and disseminate
ideas.”). Today, there may be only a few libraries that are collaborating with Defendant, but if thecourt permits this practice, it is feasible that the country’s entire network of libraries could send
Defendant their physical books and other collected works, permitting it to “lend” for free thousandsof copies of the bestsellers from every artistic industry—books, music, film, and more—all tocompete with lawfully made licensable digital works and streaming services. This practice is akinto allowing users to “steal” from the Internet because it is easy and free. A ruling permitting such
unchecked piracy would have devastating, far-reaching effects, which this Court must not allow.

ARGUMENTI.

DEFENDANT’S PRACTICE IS NOT SANCTIONED UNDER COPYRIGHT LAW
Defendant’s practice of copying and distributing digitized protected works runs afoul ofthe protections afforded by the Act and cannot be supported by any of the Act’s lawful exceptions,4Case 1:20-cv-04160-JGK-OTW Document 158-2 Filed 08/12/22 Page 10 of 30

including fair use, the first-sale doctrine, and §108’s limited reproduction rights for libraries andarchives.
A. Defendant’s Mass Digitization And Distribution Of Full Books Is Not A Fair Use
We agree with the Plaintiffs’ and their other amicis’ arguments that Defendant’s massscanning and distribution of digital versions of physical books falls well outside the bounds ofcopyright law. Without repeating these arguments in full, it is important to emphasize that thedigital copying of physical books and their unauthorized distribution by Defendant does notconstitute a fair use under §107. See 17 U.S.C. § 107. These copies serve the same purpose as thedigital books lawfully created by publishers on behalf of authors that are already available in themarketplace, meaning that Defendant’s practice fails at the very first fair use factor, which
addresses the “purpose and character of the use.” Campbell v. Acuff-Rose Music, Inc., 510 U.S.
569, 578–79 (1994). The fact that Defendant may be efficient at wholesale scanning does not give
the works new purpose or character, nor does providing a work for free that is already available tolibraries for licensing or legal acquisition. See McGucken v. Pub Ocean Ltd., 2022 WL 3051019,
at *5 (9th Cir. 2022) (noting that photos had been used for exactly the same purpose for which
they were lawfully licensed to other users and rejecting fair use defense). In contrast with casessuch as Authors Guild v. Google, Inc. and Authors Guild, Inc. v. HathiTrust, in which digitization
did qualify as fair use because it gave the works a new purpose or character,4 here Defendant4

Authors Guild v. Google, Inc. held that Google’s mass digitization of copyrighted works qualified as fair use where

it provided a transformative search function and snippet display that augmented public knowledge about the works
without creating a substantial substitute for them. 804 F.3d 202, 207, 225 (2d Cir. 2015). Meanwhile, Authors Guild,
Inc. v. HathiTrust, found that mass digitization of more than 20 million copyrighted works for purposes of full-text
searching and access for individuals with print disabilities was fair use. 755 F.3d 87, 101 (2d Cir. 2014).

5

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simply copies and distributes works in digital format, imbuing no new purpose or character in theworks.
Further, a finding that the mere reproduction and distribution of a physical work in adifferent format satisfies the first factor of the fair use test, even though it fails to add any newmeaning or insights,5 would allow fair use to swallow up all of the other exceptions under the Act.
The clear and specific guidance to librarians and archivists on conditions appropriate forreproducing full works under §108 and the limited right of first sale under §109, which allows
sales of used physical books, would be rendered meaningless if Defendant’s practices are
sanctioned. The fair use exception is intended to apply on a case-by-case basis to individual usesof copyrighted works that serve the purpose of copyright, not mass digitization of full works. By
contrast, §108 very specifically outlines the conditions under which a qualified library or archive
can digitize and make available complete works. Specifically, a qualifying library may only makea limited number of digital copies of available full works in order to replace a work that isdamaged, destroyed, lost, stolen, or unusable in the existing format after certain conditions aremet, including a library’s undertaking reasonable efforts to determine that an unused replacement
cannot be obtained at a fair price and ensuring that the digital copy is not made available to the
public in that format outside the library’s physical format. See 17 U.S.C. § 108(c). To apply fairuse in this instance, then, would lead to dueling exceptions within the Act, which Congress did notintend.
Further, the fact that §108, in particular, already contemplates the limited reproduction of5

Campbell instructs that an investigation into the first fair use factor necessarily questions whether the new work“adds something new with a further purpose or different character, altering the first with new expression, meaning, or
message . . . .” See Campbell, 510 U.S. at 579.

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physical works in digital formats, indicates that Congress considered digitization of physical works
separate from, and not to be sustained under, fair use. See U.S. v. Kozeny, 541 F.3d 166, 171 (2dCir. 2008) (reviewing statutory canons and instructing courts to read statutory sections “not in
isolation from the context of the whole Act” but in conjunction with “the provisions of the wholelaw, and to its object and policy”) (internal quotations and citations omitted). This reading makes
sense for policy reasons, as well, considering that such an overly broad interpretation of fair use
would eviscerate an author’s exclusive right to authorize distribution of copies under §106. The
Court should not interpret §107 in such a way as would render entire other sections of the Act
meaningless.
Moreover, Defendant’s practice also gives rise to significant market harm under the fourthfair use factor, addressing “the effect of the use upon the potential market for or value of the
copyrighted work.” Campbell, 510 U.S. at 590. As Defendant unlawfully copies and distributes
rightsholders’ works, it undercuts their own ability to choose to distribute their works in digitalformat.
Because thriving markets already exist for digital books and other content, including music,
films, and video games, Defendant’s practice, if sustained, would also present a threat to newtechnology Congress sought to avoid. Congress specifically designed the Act to anticipate andgrow with emerging technology and formats of copyrighted works, crafting the language of the
Act to allow its provisions to accommodate such shifts, without requiring repeated amendments.
See, e.g., Midway Mfg. Co. v. Artic Int’l, Inc., 704 F.2d 1009, 1011 (7th Cir. 1983) (“[T]helegislative history of the Copyright Act of 1976 suggests that Congress probably wanted the courts
to interpret the definitional provisions of the new act flexibly, so that it would cover new
technologies as they appeared, rather than to interpret those provisions narrowly and so force

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Congress periodically to update the act.”); see also 17 U.S.C. § 108(c) (acknowledging that“existing format[s] in which [a] work is stored” may “become obsolete” and directing libraries’
and archives’ rights of reproduction around this possibility). It would run contrary toCongressional intent to upend the foothold of already prospering multimedia digital markets,
especially where Congress intended the Act to accommodate their growth.
Whether turning to the black letter law, the effect that contorting §107 to abide Defendant’s
practice would have on the rest of the Act, or Congressional intent, it is clear that Defendant’s
practice finds no support under fair use.
B. Defendant’s Practice is Not Allowed Under the First-Sale Doctrine
Defendant cannot turn to the first-sale doctrine to support its practice of copying andreproducing digitized versions of protected works. The first-sale doctrine applies only to thedisposition of a lawfully owned copy of a work, see 17 U.S.C. § 109(a), and does not protect
reproductions. Specifically, the first-sale doctrine allows the owner of an authorized copy to sell
the copy the owner possesses, without the authority of the copyright owner, but does not permit
the owner to make a digital reproduction of the work for purposes of further distribution or resale.
See ReDigi, Inc., 910 F.3d at 657 (determining that mass resale of digital music files created a
reproduction by purchaser’s computer or storage device, contrary to the first-sale doctrine). Format
shifting is expressly outside the bounds of this limited doctrine.
Nor should Congress expand the first-sale doctrine to allow the digitization and distributionof protected works by those who merely own a specific copy of the work, which is Defendant’s
practice. Doing so would upend the purpose of the first-sale doctrine, which aims to protect
owners’ physical property rights, not afford them additional rights under copyright. See id. at 664;
see also Close v. Sotheby’s, Inc., 894 F.3d 1061, 1070 (9th Cir. 2018) (noting that the first-sale8

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doctrine serves purposes under the common law’s “refusal to permit restraints on the alienation ofchattels” and to “free[] courts from the administrative burden of trying to enforce restrictions upon
difficult-to-trace, readily movable goods”). Reproduction rights remain exclusively within theprovince of rightsholders under §106. Expanding these rights in a backdoor fashion through thefirst-sale doctrine to any party who wishes to copy and redistribute a work would lead to absurd
results, flooding the market with copies and drastically disincentivizing authors from creating newworks.
C. Section 108 Does Not Support Defendant’s Practice
Defendant’s practice of copying, digitizing, and distributing works does not meet the
specific, narrowly tailored conditions provided under §108 that allow qualified libraries toreproduce and distribute works when there is no indirect commercial advantage or interferencewith functional markets. See also 17 U.S.C. § 108. Nor should Defendant be considered a librarythat could even qualify for the protections of §108 in the first instance.
Under §108, a qualifying library may make only a limited number of digital copies of fullworks available for preservation purposes (i.e., to replace a work that is damaged, destroyed, lost,
stolen, or unusable in the existing format) after certain conditions are met, including that a librarymust make a reasonable effort to determine that an unused replacement cannot be obtained at afair price and that the digital copy is not made available to the public outside the library’s physicalpremises. See 17 U.S.C. § 108(c). This provision within §108 speaks only to preservation, notdistribution, and is narrowly crafted to avoid any distribution of replacement copies outside of thepremises of a library.
Not only does Defendant exceed these conditions with its excessive digital copying anddistribution, but it cannot be considered a “library” under §108. It is a private actor, operating

9

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entirely online. Section 108’s carefully crafted exceptions contemplate libraries engaged in“reproducing equipment located on [] premises” whose collections are “open to the public” oravailable to broad categories of researchers, beyond those merely affiliated with a particular“institution” of which the library is part. See 17 U.S.C. § 108(a). It also allows the creation oflimited digital copies provided that they are not made publicly available “outside the premises ofthe library . . . .” See id. at § 108(c). This language indicates that Congress never intended §108’s
narrow exceptions to apply to an actor like Defendant, which creates digital copies of copyrighted
works for distribution.6
The approach to digital lending undertaken by actual, qualifying “libraries” further
distinguishes them from Defendant. Digitized versions of physical works, or eBooks, have beenreadily available to consumers for nearly 15 years, including from libraries.7 In fact, by 2015, over
90% of U.S. public libraries offered eBook lending. Many of those libraries use OverDrive, which
provides eBook access to over 81,000 libraries and schools in 106 countries.8 Unlike Defendant,

6

Defendant has no premises open to the public to visit for reading, scholarship, or research. Defendant exists wholly

online, and its books are locked up in a warehouse. See, e.g., Gabriela Pereira, An Internet Abomination: There’s No
Such thing as “Free Books”, diyMFA (Mar. 31, 2020), https://diymfa.com/community/internet-archive.
7

Commercially available eReaders have been available since the mid-2000s, with the Sony Librie’s release in 2004,

the Kindle Reader’s in 2007, and the Apple iBooks apps in 2010. See E-reader, Wikipedia,
https://en.wikipedia.org/wiki/E-reader (last visited Aug. 12, 2022); see also Jennifer Wilber, A Brief History ofeBooks,TurboFuture

(Dec.

28,

2020),

https://turbofuture.com/consumer-electronics/The-History-of-

eBooks#:~:text=The%20first%20prototype%20eReader%20device,easily%20handle%20their%20reading%20loads.
8

See Richard Romano, eBook Usage in U.S. Public Libraries: Freading Sixth Annual Survey, LibraryJournal 2015,

at 7, https://s3.amazonaws.com/WebVault/ebooks/LJSLJ_EbookUsage_PublicLibraries_2015.pdf (last visited Aug.
12, 2022). A decade-spanning report by data and analytics group WordsRated noted that digital borrowing is now

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which offers no physical space for the public to visit for reading and research, traditional
community libraries have been lending lawfully licensed eBooks for years to their local patrons.
Juxtaposing Defendant’s practice of mass unauthorized copying and distribution of digital copies
against that of actual, qualifying libraries, which use lawful licenses to lend to the public, further
separates Defendant from actual “libraries” operating under §108.
II.

DEFENDANT’S PRACTICE, IF ALLOWED, WOULD DEVASTATE OTHER
CREATIVE INDUSTRIES
Although this case concerns only the 127 books that the Plaintiffs have put into issue, if

the Court were to accept Defendant’s disingenuous and irresponsible theory of copyright law, theharmful—and potentially disastrous—ramifications would impact a broad swath of the Copyright
Alliance’s membership. There are over 9,000 library systems in the United States, see Defendant’s
Rule 56.1 Statement, ¶ 93 (Dkt No. 98), but most so far have refrained from joining Defendant’s
project because of legitimate “copyright concerns.” See Plaintiffs’ Rule 56.1 Statement, ¶ 297(Dkt. No. 113). A ruling from this Court that removed those “concerns” likely would open theproverbial floodgate. Hundreds, if not thousands, of those systems—each presumably comprised

driving library collections, with over 58 percent of book selections being available online as of 2019, see Chris Melore,
Libraries are More Popular Than ever – Even as People Borrow Fewer Books, Study Finds (Apr. 5, 2022),
https://www.studyfinds.org/libraries-more-popular/ (finding that as of 2019, eBooks comprised at least a third of atypical library’s collection), a figure only driven up by the end of March 2020, owing to coronavirus-related libraryclosures, when 74% of U.S. libraries reported expanded digital collections. Daniel A. Gross, The Suprisingly Big
Business of Library e-Books, New Yorker (Sept. 2, 2021), https://www.newyorker.com/news/annals-ofcommunications/an-app-called-libby-and-the-surprisingly-big-business-of-library-e-books. Who We Are, OverDrive,
https://company.overdrive.com/company-profile/who-we-are/?_ga=2.253310474.207169459516590237135403bd68-cfef-4fce-a87f-86a54aef5825 (last visited July 28, 2022).

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of many individual branches—would feel free to make available to Defendant their collections,
not just of books, but also of music, films, video games, photographic prints, and other copyrighted
works. Given Defendant’s practice of calculating its reproduction and distribution of copies by the
number of its library members, see Defendant’s Rule 56.1 Statement, ¶¶ 52–53, the prospect of an
exponential growth in free copies of copyrighted works is patent. Even with its current limited
library participation, Defendant admits to already having had 888 copies of a title on loan
concurrently, id. at ¶¶ 92, 95. As one commentator has observed: “If IA ‘partners’ with enoughlibraries, it would then justify mass distribution of the ebooks it makes and, apparently, without
any control whatsoever . . . . After [IA] swallows the entire commercial market for ebooks, music,
motion pictures, video games, etc. would quickly follow.” David Newhoff, Why Internet Archiveis in Legal Trouble and Deserves to Be, The Illusion of More (July 18, 2022),
https://illusionofmore.com/why-internet-archive-is-in-legal-trouble-and-deserves-to-be/.
Defendant must not be allowed to proceed on its intended course, leaving entire creative industries’
livelihoods in its wake.
A. Creative Industries Have Undertaken Substantial Efforts Towards Digitization And
Would Be Harmed By Sanctioning Defendant’s Practice
The creative industries’ adaptation to changing technologies and platforms, incentivized
by the protections of the Act, has sought to promote the “useful Arts” as the Framers intended in
the Constitution. See U.S. Const. art. I, § 8, cl. 8. Allowing Defendant to misappropriate protected
works would risk significant damage to those creative industries. The music industry, for example,
adopted its own robust digitization practice following the harm incurred during the advent of thedigital era. It was one of the first intellectual property sectors to suffer the onslaught of digital
freeloaders, as Napster and other internet pirates appropriated wholesale the catalogues of record
companies and music publishers, harming not just labels and publishers but the thousands of12

Case 1:20-cv-04160-JGK-OTW Document 158-2 Filed 08/12/22 Page 18 of 30

working songwriters and composers that rely on performance and mechanical royalties fromdigital content services. Internet piracy deprived all of them a return on their investments increating, producing, marketing, and distributing music, and denied them their justly earned reward
for their creative endeavors. See, e.g., A&M Records, Inc. v. Napster, Inc., 284 F.3d 1091 (9th Cir.
2002).
Beginning in 2015, the industry was able to reverse the downtrend in record sales, however,by leaning heavily into digitization, fueled largely by growth in paid subscription and on-demand
streaming. In 2021, paid subscriptions ($8.6 billion) and on-demand streaming ($1.8 billion)
accounted for 69 percent of all revenues generated by music sales. See U.S. Sales Database, RIAA,
https://www.riaa.com/u-s-sales-database/ (last visited Aug. 12, 2022). For recording artists, as wellas music publishers, songwriters, and composers who increasingly rely on mechanical andperformance royalties from digital content services as opposed to physical sales, legitimately
licensing these services, including to libraries, makes up a significant part of their businesses andlivelihoods.9
The increase in earnings that the music industry has seen enables it to invest substantial
revenues (to wit, $5.8 billion) into the development and marketing of artists and repertoire.10 Thisencourages the entry of new artists into the market and the creation of new music, all to the benefitof music consumers who have embraced these new digital platforms. Record labels have partnered

9

Artists receive remuneration—and an incentive to create—through a variety of contractual and statutoryarrangements, including traditional royalty deals, profit-sharing, and licensing configurations.
10

See Record Companies: Powering the Music Ecosystem, IFPI, https://powering-the-music-ecosystem.ifpi.org/ (lastvisited Aug. 12, 2022); The Value of a Label, IFPI Global Music Report 2019, https://powering-the-musicecosystem.ifpi.org/download/GMR_The_Value_of_a_Label.pdf (last visited Aug. 12, 2022).

13

Case 1:20-cv-04160-JGK-OTW Document 158-2 Filed 08/12/22 Page 19 of 30

with streaming services like Spotify, Apple Music, and Amazon to provide easy access to anymusic a consumer might want.11 Consumers may choose from dozens of services offering vast
catalogues of millions of recordings, as these services pay license fees to the record companies,
which then pay the publishers and artists.12 If music, like books, can be distributed for free bylibraries, consumers will no longer have any incentive to pay for the premium streaming services
that Apple Music, Spotify, Amazon, or others offer, which in turn directly support musicians andallow them to create new music for their fans.
Like the music industry, the motion-picture industry is a thriving industry that contributes
significantly to the economy. The Motion Picture Association (“MPA”) estimates that film
production employs 2.2 million people nationwide, at over $192 billion dollars in annual wages.
2020 | The American Motion Picture And Television Industry Creating Jobs, Trading Around theWorld,

MPA(Nov.

2021),

https://www.motionpictures.org/wp-

content/uploads/2022/01/MPA_US_Economic_Contribution_2020_Final.pdf. The industry also
makes large contributions to local economies and accounts for $17.3 billion in export revenue
alone. Id.
Permitting libraries to digitize and distribute archives of movies to the public for free,

11“Record labels have evolved to become music-based entertainment companies, focused on engaging fans with acontinuous stream of social, 'snackable' music-based content.” New Report Illustrates How Modern Record Labels
Remade Themselves in the Streaming Era, Musonomics, https://musonomics.org/modernlabelreport (last visited Aug.
12, 2022).
12

See,

e.g.,

What

is

the

MechanicalLicensing

Collective(MLC)?,

SongTrust,

https://help.songtrust.com/knowledge/what-is-the-mechanical-licensing-collective-mlc (last visited Aug. 12, 2022);
About Spotify, Spotify, https://newsroom.spotify.com/company-info/ (Spotify offers over 80 million tracks) (lastvisited Aug. 12, 2022).

14

Case 1:20-cv-04160-JGK-OTW Document 158-2 Filed 08/12/22 Page 20 of 30

would have a significant, harmful impact on this vibrant economy. Just as with books and music,
copyright and valid licensing is the linchpin for the film industry, which is essential to “protecting
the fundamental rights of creators—and bolstering the policies that protect them—so that [the]industry can continue to ignite the passions of fans everywhere.” What We Do, MPA,
https://www.motionpictures.org/what-we-do/safeguarding-creativity/ (last visited Aug. 12, 2022)(hereinafter MPA: What We Do). A healthy, vibrant industry is critical not just for the studios, butalso for the creative artists: the actors, writers, and many others who contribute to the making of afilm. For example, the SAG-AFTRA and Writers Guild of America agreements with film studios
provide for residual payments to artists from retransmission and redistribution of films, including
via the Internet. See Brief of Screen Actors Guild-American Federation of Television and Radio
Artists, Directors Guild of America, Inc. et al. as Amici Curiae in Support of Petitioners, American
Broad. Cos., Inc. v. Aereo Inc., 2014 WL 880972, at *27-31 (2014). These residuals are a “crucial
source of income that can often be the lifeblood of the working actor and writer, particularly in
difficult economic times and the periods between projects.” Id. at 31. Residual payments makemajor contributions to the union pension and health plans, too. Id. at 32 n.14. The unauthorized
distribution of films, by contrast, would deprive these individuals of this critical income stream.
The film industry is also not immune to theft of its intellectual property. Globally in 2020,
there were approximately 137 billion total visits to piracy sites worldwide, with over 11 billion
downloads of pirated films, primetime TV, and video-on-demand; in 2015, the estimatedcommercial value of this digital piracy amounted to $160 billion. What Do We Know About 2020
Movie & TV Piracy Trends Worldwide, Alliance for Creativity and Entertainment,
https://www.alliance4creativity.com/wp-content/uploads/2021/06/ACE-Piracy-infographic2020-Final.pdf (last visited Aug. 12, 2022). The pirate site Megaupload.com alone is said to have15

Case 1:20-cv-04160-JGK-OTW Document 158-2 Filed 08/12/22 Page 21 of 30

diverted as much as 8.5 percent of the revenue from the three major studios. Brett Danaher,
Michael D. Smith, Gone in 60 Seconds: The Impact of the Megaupload Shutdown on Movie Sales,
33 Int’l J. of Indus. Org., 1 (Mar. 2014). To combat piracy, the industry is engaged in ongoing
copyright enforcement to diminish the unauthorized distribution of works.13 Defendant’s theory offair use that permits the distribution of unauthorized digital copies of works to users would cripple
these enforcement efforts by providing pirates with a colorable defense for their thievery.
All creative industries would be impacted by any judicial expansion of fair use that permits
wholesale copying and distribution of works from an analog format to digital withoutauthorization. The video game industry is just another example of an economic powerhouse that
employs many creative individuals14 in the creation and design of games and is estimated togenerate approximately $41 billion in direct economic output.15 Video games meld technology
with “visual arts, creativity, storytelling, and entertainment culture . . . [to create] a new form ofvisual art and entertainment and a new platform for experimentation and innovation in advanced
technology development.” Games in the 21st Century at 1. Weakening copyright protection toallow the distribution of so-called fair use digital copies of games from one format to an
unauthorized digital format would displace sales in the marketplace and discourage creative and13“To reduce piracy” the “industry’s comprehensive approach to protecting both creators and audiences includes . . .

enforcement actions” under the Act. MPA: What We Do.
14

The industry creates direct employment for upwards of 143,000 personnel, with nearly half a million employedwhen accounting for “direct, indirect, and induced economic impacts.” Video Games in the 21st Century: The 2020
Economic Impact Report, at 1, https://www.theesa.com/wp-content/uploads/2019/02/Video-Games-in-the-21stCentury-2020-Economic-Impact-Report-Final.pdf (last visited Aug. 12, 2022) (hereinafter Games in the 21stCentury).
15

Id.

16

Case 1:20-cv-04160-JGK-OTW Document 158-2 Filed 08/12/22 Page 22 of 30

innovative activities.
Music, film, television, and video gaming are all highly creative industries that rely on
copyright to protect their huge investments in developing content and to safeguard the incomes of
all those who depend on a rational market operating under transparent rules. Defendant’s distorted
theory of copyright law would upend the market’s rationality by allowing the distribution of untold
numbers of “free” digital copies to compete with authorized digital copies offered for sale orlicense. These industries’ experiences with piracy leaves no doubt that a ruling in favor of
Defendant and its notion of “free” competition will degrade revenues and undermine the incentive
to create that underlies the concept of copyright, as copyright owners could no longer look to the
Act for protection. Extrapolating from the music industry’s experience of the early 2000s forexample, it is not unreasonable to predict that sales and revenues once again would be drained
away from these creative industries by free “borrowings” from Defendant’s “library.” There would
be less incentive for artists to create and for these industries to make the investments needed todevelop, market, and distribute artists’ creations.16
III.

ONLY CONGRESS IS EMPOWERED TO DECIDE WHETHER AND UNDER
WHAT CIRCUMSTANCES TO EXPAND EXCEPTIONS THAT ALLOW NONRIGHTSHOLDERS TO DIGITIZE AND DISTRIBUTE WORKS
Defendant is scanning copyrighted works at an enterprise level with no legal basis. Worse,

16

The consensus of many independent studies is that sites offering free music via various delivery systems reduced

legitimate sales by as much as 20 percent overall. See Michael D. Smith, The Truth About Piracy, Technology Policy
Institute (Feb. 2, 2016), https://techpolicyinstitute.org/publications/intellectual-property/copyright-and-piracy/thetruth-about-piracy/. It is highly likely that a shift to free distribution from Defendant would disincentivize users frompaying for streaming services, such as Spotify Premium or Apple Music, as would be true for motion picture andtelevision streaming, discussed immediately infra.

17

Case 1:20-cv-04160-JGK-OTW Document 158-2 Filed 08/12/22 Page 23 of 30

it attempts to justify its policy of aggressive scanning and distribution of full-print works in
knowing contravention of the Act, using the recent COVID-19 pandemic to claim that its desire toprovide digital access of works qualifies as a public good.17 But Defendant conveniently ignores
the existing efforts of publishers to provide access to many of the same published books in digitalformat and disregards the harm to creators that results from its practices. See Defendant’s Mem.
of Law in Supp. of Mot. for Summ. J. (“Def’s. Mot.”) at 8–11. While Defendant attempts to rewrite
the law though its misguided “Controlled Digital Lending” theory, it is only for Congress todetermine whether any change in the copyright law is necessary.
A. Congress Alone Has the Authority to Modify Section 108’s Reproduction Protections
for Libraries and Archives
Only Congress may consider expanding the exceptions for libraries and archives under§108. Resting the decision with Congress, not the courts or any one individual or company, is bothby design and crucial, considering that Congress and its agencies are positioned to undertake thesignificant research, review, and notice and comment periods that attend changes to the law.

17

Defendant’s “public good” argument ignores the fact that its COVID-19 practices hurt creators, who were alreadyincredibly hard hit by the pandemic. See, e.g., Alicia Wallace, Covid Hit Nashville Hard. Now the Performing ArtsAre Staging a Comeback, FOX 55 News (June 12, 2022), https://www.wfft.com/news/business/covid-hit-nashvillehard-now-the-performing-arts-are-staging-a-comeback/article_ede57721-73e4-5fc6-af73-d1a2da020290.html(noting that the U.S. performing arts industry lost more than half of its jobs beginning in March 2020 in big and smallcity centers alike, with no swift rebound, particularly in Nashville, whose creative industry lost more revenue from
April to July 2020 than any other large U.S. metro area); see also Alison Flood, Internet Archive Accused of Using
Covid-19

as‘An

Excusefor

Piracy’,

Guardian

(Mar.

30,

2020),

https://www.theguardian.com/books/2020/mar/30/internet-archive-accused-of-using-covid-19-as-an-excuse-forpiracy.

18

Case 1:20-cv-04160-JGK-OTW Document 158-2 Filed 08/12/22 Page 24 of 30

Defendant is not a legislative body and cannot simply make its own rules. Moreover, it lacks the
incentive that Congress has to ensure that the interests of all stakeholders, libraries, and creators
are heard, and that precaution is taken to avoid harming existing markets for digital work.
Section 108 reform has been a priority of Congress, the Library of Congress (“LOC”), andthe U.S. Copyright Office for a number of years.18 All three entities have recognized that the digitalera presents new opportunities and challenges, involving balancing the rights of creators with theneeds of users. See generally U.S. Copyright Office, Section 108 of Title 17: A Discussion
DocumentoftheRegisterof

Copyrights

9(2017),

availableathttps://www.copyright.gov/policy/section108/discussion-document.pdf (hereinafter “Discussion
Report”). Beginning in 2005, the Copyright Office, in partnership with the Library of Congress’s
National Digital Information Infrastructure and Preservation Program, initiated an independent
committee of distinguished and experienced librarians, copyright owners, archivists, academics,
and other experts (the “Study Group”) to examine §108 in light of digital technologies and“provide findings and recommendations on how to revise the copyright law in order to ensure an
appropriate balance among the interests of creators and other copyright holders, libraries andarchives in a manner that best serves the national interest.” Id. at 9–10. The Study Group’s findings
culminated in a §108 Report published March 31, 2008, in which the issued recommendations forCongress for potential amendments to the current Act that maintained the sought-after balance18

As discussed in Section I.C. supra, the Act allows qualified libraries that meet §108’s statutory requirements to

reproduce and distribute works without a rightsholder’s permission under specific narrowly tailored conditions, andonly when there is no indirect commercial advantage or interference with functional markets. Defendant is not aqualified library under these parameters, nor can it be considered a library in the first instance.

19

Case 1:20-cv-04160-JGK-OTW Document 158-2 Filed 08/12/22 Page 25 of 30

between rightsholders, libraries, and the public. Id. at 10. In September 2017, the Register of
Copyrights issued its Discussion Report, with recommendations and model statutory language forpossible reform that would update the statutory framework to encompass preservation in a digitalera while maintaining restrictions on mass digitization to protect rightsholders and, particularly, toencourage thriving markets. See generally Discussion Report.
The Discussion Report acknowledged the desire to expand §108 activities to accommodate
the public’s access to libraries’ or archives’ wide-ranging collections but recommended doing so
in a manner that would respect authors’ rights. Id. at 23. The Report made clear that for a work to
be considered “disseminated to the public,” such dissemination must be with the authorization of
the author or rightsholder. Id. at 24.
In the Copyright Office’s view, a carefully revised §108 would provide a much more solid
ground upon which to base the vitally important work of digital reproduction and access forscholars and future generations than reliance on fair use, which by necessity requires a case-bycase approach.19 The Discussion Report stressed that the time was ripe to engage in §108 reform,
but nonetheless, there has been no reform to date. In the meantime, Defendant has chosen to
circumvent Congress, the LOC and the U.S. Copyright Office and instead take matters into theirown hands by creating out of whole cloth a legal fiction they refer to as “Controlled Digital

19

Id. at 11, 13–14. Prior to hearing witness testimony, Judiciary Committee Chairman Bob Goodlatte noted that“[r]ecently some have suggested that instead of updating section 108 for the digital age, preservation activities should
be covered by the fair use provisions of section 107. While it is probably true that there are clear-cut cases in which
fair use would apply to preservation activities, fair use is not always easy to determine, even to those with large legal
budgets. Those with smaller legal budgets or a simple desire to focus their limited resources on preservation may
prefer to have better statutory guidance than exists today.” Id. at 11.

20

Case 1:20-cv-04160-JGK-OTW Document 158-2 Filed 08/12/22 Page 26 of 30

Lending.” See Def’s. Mot.at 16.
i.

Section 108 Requires Careful Balancing of Competing Interests, Which
Congress is Uniquely Positioned to Consider

The various competing interests surrounding libraries’ and archives’ digitization rights
requires Congressional oversight in order to achieve a balanced result. While §108 addresses user
requests for copies of works, it expressly balances such requests with the rights of the copyrightholders and the need to prevent infringement. Section 108 recognizes the importance of controlling
libraries’ and archives’ making and distributing copies of works so that they do not interfere withcommercial markets.20 Section 108 does not provide exceptions based on the efficiency of thelibrary’s scanning abilities, nor does it allow the distribution of entire works on a mass scale.
B. Congress Alone Has the Authority to Consider Expanding the First-Sale Doctrine to
Permit Digitization and Distribution of Works
Similarly, only Congress has the authority to expand the first-sale doctrine beyond its
current application to only physical works. In Association of American Publishers, Inc. v. Frosh,
the court stated that only Congress could expand the first-sale doctrine to digital copies, not a Court

20

For example, §108(c) permits libraries and archives to make three copies of a work if an existing copy is “damaged,

deteriorating, lost or stolen” or if “the existing format in which the work is stored has become obsolete,” but eventhen, only if further conditions are met. As discussed, this requires the library or archives to have undertaken a“reasonable effort” to determine that “an unused replacement cannot be obtained at a fair price” and provide assurance
that they will not make the digital reproduction available to the public outside their premises. Id. Additionally, a format
is only deemed “obsolete” if the machine or device necessary to perceive the work “is no longer manufactured or is
no longer reasonably available in the commercial marketplace.” Id.; see also Discussion Report at 28. (reasoning that“there is insufficient need for libraries or archives to make preservation copies of published or publicly disseminatedcopyrighted works where there is no evidence of any significant risk of loss, such as for works readily available on
the market”).

21Case 1:20-cv-04160-JGK-OTW Document 158-2 Filed 08/12/22 Page 27 of 30

or a state. 2022 WL 484926, at *12 (D. Md. Feb. 16, 2022).
It is clear from the text and history of the Act that the balance of rights and exceptions
surrounding digitization of copyrighted works is to be decided by Congress alone. Agencies, suchas the Copyright Office and the Department of Commerce’s Internet Policy Task Force, havecautioned Congress not to expand the first-sale doctrine to digital transmission because of the riskof increased infringement, as well as risks to the creative industries’ primary markets.21
Striking the balance between the critical functions of libraries and the importance ofpreserving the exclusive rights of copyright holders, however, is squarely in the province ofCongress and not the courts, and cannot be left in the hands of one entity. Defendant cannot be theone to determine the format and distribution method of a copyright holder’s work without theowner’s authority and consent.

CONCLUSION
For the reasons set forth above, the Copyright Alliance, as amicus curiae, respectfully
requests that the Court grant Plaintiffs’ motion for summary judgment and deny Defendant’s crossmotion for summary judgment.

21

The Copyright Office recommended against expanding the first-sale doctrine to digital transmissions in part because“[t]he risk that expansion of section 109 [would] lead to increased digital infringement weigh[ed] heavily against suchanexpansion.” U.S.

Copyright

Office, DMCA

Section104

Report99(2001),

availableathttps://www.copyright.gov/reports/studies/dmca/sec-104-report-vol-1.pdf. In 2016, the Department of Commerce’s
Internet Policy Task Force prepared a “White Paper on Remixes, First Sale, and Statutory Damages.” Dep’t ofCommerce Internet Policy Task Force, White Paper on Remixes, First Sale, and Statutory Damages (2016), available
athttps://www.uspto.gov/sites/default/files/documents/copyrightwhitepaper.pdf.

The

likewise recommended against expansion of the first sale doctrine to digital transmissions. Id. at 58.

22

Task

Force

Case 1:20-cv-04160-JGK-OTW Document 158-2 Filed 08/12/22 Page 28 of 30

Dated: August 12, 2022

COWAN, DEBAETS, ABRAHAMS &SHEPPARD LLP/s/ Nancy E. Wolff
Nancy E. Wolff
Alex Gigante
Elizabeth Safran
41 Madison Avenue, 38th Floor
New York, New York 10010
Tel.: (212) 974-7474
Fax: (212) 974-8474
nwolff@cdas.com
agigante@cdas.com
esafran@cdas.com
Attorneys for Amicus Curiae

23Case 1:20-cv-04160-JGK-OTW Document 158-2 Filed 08/12/22 Page 29 of 30

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the formatting and word count requirements
set forth in this Court’s Individual Practices II.D. According to the word count function of
Microsoft Word, this brief contains 6924 words (excluding cover page, table of contents, table ofauthorities, certification of compliance, and certification of service).

/s/ Nancy E. Wolff
Nancy E. Wolff

Case 1:20-cv-04160-JGK-OTW Document 158-2 Filed 08/12/22 Page 30 of 30

CERTIFICATE OF SERVICE
I, Nancy E. Wolff, hereby certify that a true and correct complete copy of the foregoing
Brief of Amicus Curiae in Support of Plaintiffs Hachette Book Group, Inc., HarperCollins
Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC’s Motion for
Summary Judgment has been served on all counsel of record via the Court’s CM/ECF service.

/s/ Nancy E. Wolff
Nancy E. Wolff