Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 1 of 35

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORKHACHETTEBOOK
GROUP,INC.,
HARPERCOLLINS PUBLISHERS LLC, Case No. 1:20-CV-04160-JGK
JOHN WILEY & SONS, INC., and PENGUINRANDOM HOUSE LLC,
Plaintiffs,v.
INTERNET ARCHIVE and DOES 1 through5, inclusive,
Defendants.
[PROPOSED] MEMORANDUM OF LAW OF AMICI CURIAE
THE AUTHORS GUILD, INC., WESTERN WRITERS OF AMERICA, CANADIANAUTHORS ASSOCIATION, AMERICAN PHOTOGRAPHIC ARTISTS, THE
WRITERS’ UNION OF CANADA, INTERNATIONAL AUTHORS FORUM,
AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS, ROMANCE WRITERS OF
AMERICA, SOCIETY OF CHILDREN’S BOOK WRITERS AND ILLUSTRATORS,EUROPEAN WRITERS COUNCIL, NATIONAL WRITERS UNION, GRAPHICARTISTS GUILD, AMERICAN SOCIETY FOR COLLECTIVE RIGHTS LICENSING,
SOCIETY OF AUTHORS, SISTERS IN CRIME, INTERNATIONAL FEDERATION OF
JOURNALISTS, DRAMATISTS GUILD OF AMERICA, NATIONAL PRESSPHOTOGRAPHERS ASSOCIATION, NOVELISTS INC., ASSOCIATION OF
AUTHORS AGENTS, THE AMERICAN SOCIETY OF JOURNALISTS AND
AUTHORS, THE UNION DES ÉCRIVAINES ET DES ÉCRIVAINS QUÉBÉCOIS, AND
EUROPEAN VISUAL ARTISTS IN SUPPORT OF PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENTREITLER KAILAS & ROSENBLATT LLP
885 THIRD AVENUENEW YORK NEW YORK 10022
ATTORNEYS FOR AMICI CURIAE

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TABLE OF CONTENTSPRELIMINARY STATEMENT .................................................................................................... 1
STATEMENT OF INTEREST OF AMICI..................................................................................... 1
SUMMARY OF ARGUMENT ...................................................................................................... 1
ARGUMENT .................................................................................................................................. 4I.

OPEN LIBRARY IS NOT FAIR USE .............................................................................. 4
A.

Open Library Is Not A Transformative Use .......................................................... 4

B.

Open Library’s CDL Practices Are Certain to Cause Significant
Harm to Authors’ Incomes .................................................................................... 8
1.

Open Library Will Decimate the Library Ebook Licensing
and Consumer Ebook Markets From Which Amici’s
Members Derive A Significant Share of Their Incomes .............................. 92.

The Court Must Consider the Harm to the Value of theWorks if Open Library’s CDL Practices were to Become
Widespread and Unrestricted……………………………..……………….10

3.

Open Library Directly Harms the Market for Back In Print
Works and Adversely Impacts Authors’ Ability to Reuse
Works ......................................................................................................... 15
i. Rights Reversion and the Back In Print Market ................................. 16
ii. The significance of author income from back in print books andreuses................................................................................................... 18

4.

Open Library Will Deprive Copyright Owners of Royalties
Paid For Lending By Non-U.S. Libraries Under the Public
Lending Right ............................................................................................. 20

CONCLUSION ............................................................................................................................. 21
APPENDIX ................................................................................................................................. 233

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TABLE OF AUTHORITIESCASESAmerican Geophysical Union v. Texaco, Inc.,
60 F.3d 913 (2d Cir. 1994)......................................................................................................... 20
Authors Guild v. Google, Inc.,804 F.3 202 (2d Cir. 2015)................................................................................................... 2, 4, 5
Authors Guild v. HathiTrust,
755 F.3d 87 (2d Cir. 2014)........................................................................................................... 2
Campbell v. Acuff-Rose Music,
510 U.S. 569, 590 (1994) ........................................................................................................... 10
Capitol Records v. ReDigi, Inc.,
910 F.3d 649 (2d Cir. 2018)......................................................................................................... 4
Clean Flicks of Colorado v. Soderbergh,
433 F. Supp. 2d 1236 (D. Colo. 2006) ....................................................................................... 15
Disney Enters. v. VidAngel,
869 F.3d 848, 852 (9th Cir. 2017) ......................................................................................... 4, 14
New York Times Co. v. Tasini,
533 U.S. 483 (2001) ..................................................................................................................... 6
STATUTES
17 U.S.C. § 106 ............................................................................................................................... 2
17 U.S.C. § 109 ........................................................................................................................... 2, 7
17 U.S.C. § 201 ........................................................................................................................... 6, 7
17 U.S.C. § 1201(a)(1)(C) .............................................................................................................. 4
OTHER AUTHORITIES1976 U.S.C.C.A.N. 5659, 5738 ...................................................................................................... 6
Abraham L. Kaminstein, U.S. Copyright Office, Divisibility of Copyrights, Study No. 11 (June1957), in Copyright Law Revision: Studies Prepared for the Subcomm. on Patents, Trademarks,
and Copyrights of the Senate Comm. on the Judiciary, 86th Cong., 2d Sess. 17–23 (Comm. Print
1960) ............................................................................................................................................... 6ii

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David Hansen & Kyle Courtney, White Paper on Controlled Digital Lending of Library Books,
https://controlleddigitallending.org/whitepaper ........................................................................ 5, 16
Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control
Technologies, 80 Fed. Reg. 65944–01, 65960 (Oct. 28, 2015) ...................................................... 5
H.R. Rep. 94-1476, at 123 (1976)................................................................................................... 6https://www.authorsguild.org/industry-advocacy/u-s-district-court-grants-win-to-plaintiffs-inkiss-library-ebook-piracy-suit/ ...................................................................................................... 11https://www.makeuseof.com/tag/the-best-6-sites-to-get-free-ebooks/ ......................................... 11
Jim Parker, “The Public Lending Right and What It Does,” WIPO Magazine June 2018,https://www.wipo.int/wipo_magazine/en/2018/03/article_0007.html ......................................... 20
S. Rep. 94-473, at 106–07 (1975) ................................................................................................... 6
See https://www.authorsguild.org/wp-content/uploads/2021/10/AG-Comments-re-USTR-0210013-2021-Notorious-Markets-List.pdf ....................................................................................... 11
Six Takeaways from the Authors Guild 2018 Author Income Survey,
https://www.authorsguild.org/industry-advocacy/six-takeaways-from-the-authors-guild-2018authors-income-survey/ .................................................................................................................. 3
The Authors Guild’s Model Trade Book Contract and Commentary, Section 2, Grant of Rights,
https://go.authorsguild.org/contract_sections/2. . ........................................................................... 6
The Authors Guild’s Model Trade Book Contract and Commentary, Section 5, Royalties,
https://go.authorsguild.org/contract_sections/5 . ............................................................................ 8iii

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PRELIMINARY STATEMENT1
Amici Curiae The Authors Guild, Inc., Western Writers of America, Canadian Authors
Association, American Photographic Artists, The Writers’ Union of Canada, International Authors
Forum, American Society of Media Photographers, Romance Writers of America, Society ofChildren’s Book Writers and Illustrators, European Writers Council, National Writers Union,
Graphic Artists Guild, American Society for Collective Rights Licensing, Society of Authors,
Sisters in Crime, International Federation of Journalists, Dramatists Guild of America, National
Press Photographers Association, Novelists Inc., Association of Authors Agents, The American
Society of Journalists and Authors, The Union des Écrivaines et des Écrivains Québécois, andEuropean Visual Artists (collectively, “Amici”) respectfully submit this [Proposed] Memorandumof Law in Support of their Motion for Leave to File Amici Curiae Brief and Proposed Amici Curiae
Brief in support of Plaintiffs Hachette Book Group, Inc.’s, HarperCollins Publishers LLC’s, John
Wiley & Sons, Inc.’s, and Penguin Random House LLC’s Motion for Summary Judgment.
STATEMENT OF INTEREST OF AMICIThe Amici are all organizations that represent the professional interests of writers and othercreators. The identity and interests of each of the Amici are set forth in the attached Appendix.
SUMMARY OF ARGUMENT
Defendant Internet Archive (“IA”) has engaged, and continues to engage, in willful
infringement of Plaintiffs’ copyrighted literary works (“Works”) on a massive scale. Through its
so-called Open Library program (“Open Library”), IA has created a vast unauthorized online

1

The parties have consented to the submission of this brief by Amici. Neither the parties
not their counsel have authored this brief, and neither they nor any other person or entity otherthan counsel for Amici contributed money that was intended to fund preparing or submitting thisbrief.

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database of literary works that anyone in the world can access for free, which differs from the mostflagrantly illegal pirate websites chiefly by reason of its enormous scale. IA has reproduced anddistributed digital copies of these works under the pretext that it is merely a library, loaning“books” to its patrons by means of a process it refers to as controlled digital lending, or “CDL” –which in reality is neither controlled nor limited to lending. 2
As set forth more fully below, Open Library is not a fair use. Moreover, it is irreconcilable
with several fundamental principles of U.S. copyright law, including the statute’s recognition of a
copyright owner’s separate exclusive rights of distribution and reproduction under 17 U.S.C. §106, and the express limitations Congress placed on the first-sale doctrine, which permits
distribution, but not reproduction, of lawfully-made physical copies of a work under 17 U.S.C. §109. If Open Library’s practices are found legal, any website calling itself a library could digitize
or copy any in-copyright creative works and “lend” out copies, including in a manner that actually
downloads the copies on users’ computers. This will gut copyright law and, as a result, will greatly
diminish our country’s literary and other creative output. IA’s policy arguments regarding thesestatutory provisions must in any event be addressed to Congress, not to this Court.
IA’s implausible assertion of fair use merely rehashes arguments that this Court, theSecond Circuit and the U.S. Supreme Court have squarely and consistently rejected. Open
Library’s digitization and distribution of Plaintiff’s Works is not transformative, including by thestandards of the Second Circuit in Authors Guild v. Google, Inc., 804 F.3 202 (2d Cir. 2015)(“Google Books”) and Authors Guild v. HathiTrust, 755 F.3d 87 (2d Cir. 2014) (“HathiTrust”) on

2

This brief does not address the so-called “controlled digital lending” practices of otherentities or institutions, but only refers to IA’s practices with respect to its Open Library program
which it defends under the rubric of “controlled digital lending.”-2-

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which IA purports to rely, but instead uses the literary works in their entirety for their original
intended purpose, merely providing a free substitute for authorized library ebook lending.
IA’s infringements have caused and will continue to cause significant harm to Amici’s
members. Many members’ works are part of the “long tail” of older published works that earnmuch of their revenue from licensed electronic uses rather than sales of new copies. Because
authors and many other creators today generally earn so little from their writing, 3 they rely on
income from the long tail and even a seemingly minor reduction in such income will materially
impact the authors, visual artists, photographers, and other creators who depend on it. IA itself
concedes, see IA Mem., ECF 106 at p. 13, that libraries will be likely to shift their finite acquisition
resources away from ebook licenses for older titles, if this Court allows them to offer ebooks ofthose older works to users for free. So the works that IA has unilaterally deemed unworthy of full
copyright protection are the very ones whose creators will be most significantly harmed by IA’s
willful and widespread infringement. Further, creators and their publishers will find it morechallenging to bring older titles back into print, whether in physical or electronic form, if they mustcompete with free Open Library-generated ebooks from IA. Such free Open Library-generated
ebooks will also create a direct market substitute for authorized lending by libraries outside theU.S., which lending – unlike Open Library – generates royalties for creators under the public
lending right recognized by many other countries.
The Court should harbor no illusions: the public-spirited veneer of “library lending” behind
which IA seeks to disguise its massive infringement is a Trojan horse. It undermines the carefulbalancing of interests that Congress codified in the Copyright Act and poses a grave threat to the3

Six Takeaways from the Authors Guild 2018 Author Income Survey,
https://www.authorsguild.org/industry-advocacy/six-takeaways-from-the-authors-guild-2018authors-income-survey/ (Accessed August 11, 2022).
-3-

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livelihoods of countless individual copyright owners who are members of Amici. The Plaintiffs’
motion for summary judgment should be granted in all respects.
ARGUMENTI.

OPEN LIBRARY IS NOT FAIR USE
The inapplicability of fair use to book digitization technologies such as Open Library is

well-settled. In June 2015, the Copyright Office published a report on the subject of orphan works
and mass digitization,4 which specifically considered inter alia whether mass digitization bylibraries could be entitled to a fair use defense under §107. The Copyright Office stated at *19that “there is broad agreement that no colorable fair use claim exists [for] providing digital accessto copyrighted works in their entirety.” Since that time, the significant fair use decisions that havespoken to these issues, including Google Books and Capitol Records v. ReDigi, Inc., 910 F.3d 649(2d Cir. 2018) (“ReDigi”), have only reinforced that conclusion.
A.

Open Library Is Not A Transformative UseOpen Library is not a transformative use. It is merely a new spin on the much-discredited“space-shifting” or “format-shifting” argument that internet-enabled infringers from Napster
onward have tried and failed to foist on the courts. As the Ninth Circuit noted in Disney Enters. v.
VidAngel, 869 F.3d 848, 852 (9th Cir. 2017) (“VidAngel”):
The reported decisions unanimously reject the view that spaceshifting is fair use under § 107. See A&M Records, 239 F.3d at 1019
(rejecting ‘space shifting’ that ‘simultaneously involve[s]distribution of the copyrighted material to the general public’);
UMG Recordings, 92 F.Supp.2d at 351 (rejecting “space shift” ofCD files to MP3 files as ‘another way of saying that theunauthorized copies are being retransmitted in another medium—aninsufficient basis for any legitimate claim of transformation’).
Indeed, in declining to adopt an exemption to the DMCA for spaceshifting, see 17 U.S.C. § 1201(a)(1)(C), the Librarian of Congress
42015 WL 5821453 (CPY.OFC 2015).
-4-

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relied on the Register of Copyright’s conclusion that ‘the law of fairuse, as it stands today, does not sanction broad-based space-shiftingor format-shifting.’ Exemption to Prohibition on Circumvention of
Copyright Protection Systems for Access Control Technologies, 80
Fed. Reg. 65944–01, 65960 (Oct. 28, 2015).
Although IA does not employ the vocabulary of space-shifting or format-shifting in thislitigation, perhaps because the courts have so often rejected those arguments, Open Library in fact
does nothing other than change the format in which a literary work is embodied, so that the work
(not the copy) can be made available to readers in a different location. The so-called White Paperon CDL, upon which IA and its Amici rely heavily, concedes the point. See David Hansen & Kyle
Courtney,

White

Paper

on

Controlled

DigitalLendingof

Library

Books,

https://controlleddigitallending.org/whitepaper (Accessed August 10, 2022) (“White Paper”) at 25(“What CDL does allow is a change of the format in which that lend is made”).
Therefore, Open Library is not a transformative use. The Second Circuit in Google Books
states explicitly that “recasting of a novel as an ebook,” as IA does here, fails to “involve the kindof transformative purpose that favors a fair use finding.” Google Books at 215. Because theSecond Circuit itself began by noting that the case “tests the boundaries of fair use,” id. at 206,
this Court should not expand the definition of transformative use to reach a fact pattern that Google
Books itself flatly declared to fall outside those boundaries.
As the Second Circuit has recognized, an ebook is not a transformative use of a print book;to the contrary, it is merely another format in which the underlying literary work can be exploited.
The practices of the publishing industry are built around this distinction between print, electronic,
audio, and other formats. Authors monetize their copyrights by granting specific rights to-5-

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publishers.5 As provided by the Copyright Act, an author may choose to transfer (usually by“license”) her copyright ownership in whole or in part and may choose to license certain of her
exclusive rights but retain others. See 17 U.S.C. § 201. Congress expressly recognized theimportance of the divisibility of these exclusive rights by providing, in the text of the statute, that“any subdivision of any of the rights specified by section 106” may be owned separately. 17
U.S.C. § 201(d)(2); see also New York Times Co. v. Tasini, 533 U.S. 483, 494 (2001).
As the House of Representatives and Senate pointed out in their committee reports, thisprovision was the “first explicit statutory recognition of the principle of divisibility of copyrightin our law.” H.R. Rep. 94-1476, at 123 (1976), as reprinted in 1976 U.S.C.C.A.N. 5659, 5738; S.
Rep. 94-473, at 106–07 (1975). Each of the exclusive rights enumerated in Section 106 “may be
subdivided indefinitely” and “each subdivision of an exclusive right may be owned and enforced
separately.” H.R. Rep. 94-1476, at 61; S. Rep. 94-473, at 57; see also Abraham L. Kaminstein,
U.S. Copyright Office, Divisibility of Copyrights, Study No. 11 (June 1957), in Copyright Law
Revision: Studies Prepared for the Subcomm. on Patents, Trademarks, and Copyrights of the
Senate Comm. on the Judiciary, 86th Cong., 2d Sess. 17–23 (Comm. Print 1960) (discussing theneed for divisibility of copyrights). IA’s attempt to apply the fair use doctrine in this instanceundermines Congress’ intent in allowing rights to be divided and transferred separately in the
Copyright Act.
Determining how to separate and monetize their bundle of rights requires authors and theirrepresentatives to make careful decisions about how they want their work to be released andexploited (including when, in what territories, and in which formats). In recent years, given the5

See The Authors Guild’s Model Trade Book Contract and Commentary, Section 2, Grantof Rights, https://go.authorsguild.org/contract_sections/2. (Accessed August 10, 2022).
-6-

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advent of technology that makes reading literary works on electronic devices possible, along withthe growing popularity of ebooks, the decision of whether to grant licenses to ebooks and otherelectronic rights are key considerations for authors and other creators. Whether authors choose to
publish with a traditional publisher or self-publish, however, the agreements always specify theprecise rights and formats being licensed. IA’s actions here undercut that exclusivity and interferewith authors’ abilities to separately license their rights.
If IA’s arguments in this litigation were accepted, any author or other creator who conveyed
to a publisher the right to sell print copies of a work of authorship would, de facto, be granting IA
and other online self-titled or actual libraries the right to reproduce and distribute that work inelectronic form, as an unintended third-party beneficiary of the grant of print rights. The copyrightstatute allows the owner of a lawfully-made physical copy to dispose of that copy as they wish, 17
U.S.C. §109; IA’s logic would extend that rule to allow the recipient of that physical copy to makeadditional copies of the underlying work in different formats, meaning that a copyright owner
would have no ability to license rights separably. Needless to say, such a rule would gut copyright
law and the divisibility of rights that is so central to the 1976 Copyright Act.
The Copyright Act instead rejects any such mandatory bundling of print publication rights
and other economically significant rights. There is no compulsory license for digital derivativesof literary, pictorial or other works of authorship, let alone one that is triggered simply by virtueof print publication of such works. Those rights are separate, and as a practical matter they areseparately conveyed by authors. 17 U.S.C. § 201(d). As noted above, when an author publishes
a literary work, he or she typically makes separate grants of print rights, audio rights, ebook rights,
and other rights, whether to different publishers or to one publisher under a single agreement. Eachof the rights granted is taken into account in negotiating the advance paid to the author and the-7-Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 12 of 35

other commercial terms of the publishing contract. IA’s offering unauthorized derivative versionsof ebooks through Open Library will significantly interfere with authors’ abilities to grant
exclusive electronic text rights to publishers and other licensees. This material interference is notwithout financial consequence, as it would severely diminish the value of these rights for authors
because authors will no longer have the ability to grant exclusive ebook rights to potential licensees
and fully exploit their rights in each separate format, which in turn will result in a loss of market
opportunity and revenue streams.
By engaging in massive and uncompensated “format-shifting” from print books to ebooks,
IA is robbing authors of their right to separately license the rights that Congress created for them.
B.

Open Library’s CDL Practices Are Certain to Cause Significant Harm toAuthors’ Incomes

As the Plaintiffs have described, Open Library’ offering of ebooks serves as a direct
substitute for authorized sales and licenses of ebooks. As such, it currently causes and is likely tocause even more harm in ensuing years to the ebook markets. ECF 99 at pp. 29-39. Each lost saleby their publishers results in a direct loss of income for authors. Authors, when publishing throughtraditional publishers such as plaintiffs, are generally paid a royalty for each copy of the book sold.
The royalty rate is a percentage of either the list price of the book or the net receipts, with different
rates for different formats. Today, most publishers pay authors 25% of the net receipts for all
ebooks, including library licenses. 6 Because library licenses are generally more expensive thansales of ebooks to consumers, the author’s share is a greater total amount (for instance, a librarylicense to an ebook priced at $35 would result in a royalty of $8.75, as compared to $3.00 for a
consumer ebook priced at $12).

6

The Authors Guild’s Model Trade Book Contract and Commentary, Section 5, Royalties,
https://go.authorsguild.org/contract_sections/5 (Accessed August 11, 2022).
-8-

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Accordingly, authors stand to lose significant income from Open Library’s substitution oflibrary licenses alone if the court were to erroneously find that IA’s use were fair use. Morevoer,
Open Library also replaces sales directly to consumers, as so many consumers will choose free
ebooks over purchasing an ebook, and this further results in lost income for authors. See ECF 99
at pp. 29-39. Last and perhaps most importantly from authors’ perspective, Open Library’s
practices, especially should they become widespread and unrestricted, will eradicate the market
for authors’ bringing the books back into print after publishers have ceased selling their books andthe authors have reclaimed their rights.
1.

Open Library Will Decimate the Library Ebook Licensing and Consumer
Ebook Markets From Which Amici’s Members Derive A Significant Shareof Their IncomesIA admits, see ECF 106 at p. 13, that libraries will shift finite resources away from ebook
licenses for older titles. Instead of removing those ebooks from their catalogs, libraries will use
controlled digital lending to provide ebooks to their users. This will greatly reduce ebook sales
for backlist books. The backlist is extremely important revenue for both publishers is extremely
important. In 2019 backlist books comprised 63 percent of overall US book sales. This figure
jumped even higher during the pandemic when 67 percent of all US book sales were backlist titles. 7
In this way, the author will not only be deprived of income from licensing, but theavailability of free unlicensed copies will hinder library patrons from buying the book. Moreover,
if IA’s Open Library practices become widespread – which will occur if IA prevails in this suit –7

See https://www.janefriedman.com/how-the-pandemic-is-affecting-book-publishing/(Accessed August 12, 2022); see also https://www.publishersweekly.com/pw/by-topic/industrynews/bea/article/86464-u-s-book-show-backlist-strategies-to-build-revenue.html (The pandemic“brought the long tail in a big way,” Penguin Random House Publisher Services v-p of marketing
Matthew Shatz said… he long tail theory asserts that products in low demand can collectively
build a larger market share than a few high sellers over a given amount of time. “For 20 years, we
didn’t really see it that way,” Shatz said. “But with Covid-19, the concept just might be a concrete
example of the long tail at work.”).
-9-

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every library can start making digital copies instead of licensing ebooks and the long tail will fizzle
out, eviscerating the potential market for authors to bring their books back into print – a market tatolder authors in particular are reliant on simply to put food on the table.
Moreover, when that happens, the harm caused by Open Library will extend not just to the
exploitation of copyright owners’ existing works, but will also disadvantage copyright owners infuture contract negotiations, as the availability of a no-cost library ebook option will devalue any
ebook rights such copyright owners may be able to convey to publishers. A publisher could not
rationally be expected to pay much, if anything, to the author for the right to license ebooks tolibraries, if Open Library can make such access universally available to readers without consent
by or payment to publishers. Accordingly, the disappearance of this market would be devastating
for the members of Amici.
2.

The Court Must Consider the Harm to the Value of the Works if Open
Library’s CDL Practices were to Become Widespread and UnrestrictedMarket harm under the fourth factor is much broader than simply adding up specificinstances of past harm. Under Campbell, the Court must weigh the market harm that would result
if the infringing conduct were to become “unrestricted and widespread.” Campbell v. Acuff-Rose
Music, 510 U.S. 569, 590 (1994). If IA were to prevail in this action, then any library, or evenanyone who calls themselves a library, could digitize books and make them available. If that werethe case, libraries would no longer have any need to license ebooks. Indeed, part of IA’s plan is
to allow libraries to use its ebooks instead of having to license ebooks. As plaintiffs’ brief states,“IA openly markets the Open Libraries project with promises that Partner Libraries no longer needto license ebooks: joining as a Partner Library ‘ensures that a library will not have to repurchasethe same content repeatedly simply because of a change in format.’ Plaintiff’s Statement of-10-

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Undisputed Material Facts, ECF 107 (“SUMF”) ¶382. Or, as it pithily suggests, ‘You Don’t Have
to Buy It Again.’ Id. at ¶383.
Relatively few libraries are currently partner libraries in the Open Libraries program
mainly, it appears, due to their rightful concerns about copyright. If the court were to rule in IA’sfavor, many other libraries would likely join as partners. It is difficult to imagine how a viablelibrary licensing ebook market could be sustained in that case.
Further, any entity that called itself a library could use a decision condoning Open Libraryto justify making digital copies of physical books and distributing them as ebooks. And that isexactly what some of the world’s most popular, high-volume pirate sites such as Library Genesis(Libgen), Z-Library,8 and the now defunct Kiss Library, 9 already do. “Library Genesis.” Far fromoperating in the shadows, these notorious pirate sites appear prominently in search results andinformational articles alongside legal libraries and ebook sources such as Project Gutenberg, Over
Drive, and others.10 For example, the third result in a simple Google search query for “Download
free books” elicits an article from popular how-to website Makeuseof.com that lists Library
Genesis at #2 on the list of “10 best free ebook download sites.” Even more alarmingly, Z-Library,

8

Libgen and Z-Library domains are not only the most high-traffic locations for pirate ebook
acquisitions, they rank among the most high-traffic locations overall on the global internet. For
e.g., in a submission concerning notorious pirates to the US Trade Representative’s Office theAuthors Guild noted that one of Libgen’s domains ranked #2758 (among the over-1.8 billion
websites) and a Z-Library domain ranked #5301 in global engagement rankings over a 90-day
period. See https://www.authorsguild.org/wp-content/uploads/2021/10/AG-Comments-re-USTR021-0013-2021-Notorious-Markets-List.pdf (Accessed August 10, 2022).
9

Kiss Library was taken down as a result of a civil lawsuit by author plaintiffs, Amazon,
and Penguin Random House, organized in part by the Authors Guild. See
https://www.authorsguild.org/industry-advocacy/u-s-district-court-grants-win-to-plaintiffs-inkiss-library-ebook-piracy-suit/ (Accessed August 10, 2022).
10

https://www.makeuseof.com/tag/the-best-6-sites-to-get-free-ebooks/(Accessed August

10, 2022).
-11-

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possibly the most high-profile and highly trafficked book piracy site in the world, which
unabashedly calls itself “The world’s largest ebook library,” appears third in results for the query“free ebook library” and fourth in the query for “ebook library” after library ebook sales andlicensing platform Overdrive and the New York Public Library’s popular “E-Book Central”
catalogs. Below are screen shots of the search query:-12-

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The interpolation of the high traffic pirate sites with legitimate library portals in common
search results is both a product of elaborate subterfuge 11 by pirate sites to appear as legitimate
libraries and an inability to distinguish between legal library lending and illegal downloads byinternet readers. The lack of distinction between pirate sites and legitimate ebook sources, and thelack of safeguards to prevent pirate sites from appearing in responses to innocent search queries is

11

Pirate sites often have a form for “DMCA” takedowns to deceive users into thinking
they’re user-generated-content sites with safe harbor protections.
-13-Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 18 of 35

devastating for authors and publishers. A finding that Open Library’s use is fair use will erase thecareful distinction under copyright law between legitimate library functions and wholly infringing
activity and make their deceptions even more convincing.
In sum, the fourth fair-use factor is not a damage calculation but requires the Court to weighthe consequences of such a ruling on the library ebook market, which would likely disappear as asource of revenue for many members of Amici as well as the entire consumer ebook market, which
will likely be gravely damaged as well. ECF 99 at pp. 29-39.
The “owned to loaned” fiction asserted by IA does not eliminate the market harm Open
Library causes. The basic underlying assumption of “owned to loaned” is that the market for“owned” print books and the market for “loaned” ebooks are the same market, so that circulationof a copyrighted work in any format is fungible with circulation of that work in any other format. 12
The record belies that assumption, as copyright owners and libraries have over many years createdand participated in entirely separate markets for the sale of physical books and the licensing of
ebooks, at different prices and on different terms and conditions.
Accordingly, the Ninth Circuit in VidAngel rejected the fair use argument of the defendant
video service, which bought legitimate copies of videos, created edited versions, and then streamed
the edited versions to the nominal “owners” of those authorized copies. The fact that the process
began with a legitimate copy “in no way frees defendant to usurp a further market that directly
derives from reproduction of the Plaintiffs’ copyrighted works.” VidAngel at 861 (quoting UMG
Recordings, Inc. v. MP3.com, Inc., 92 F.Supp.2d 349, 352 (S.D.N.Y. 2000)) (emphasis added).

12

See, e.g., IA Mem., ECF 106 at p. 12 (discussing the effect of IA’s unauthorized ebookson the “corresponding print sales at retail” of the same titles). The record here is clear: what IA
owns are printed books. What it loans is access to a digital embodiment of a copyrighted work.
The record is equally clear that those are different markets.
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Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 19 of 35

Likewise in Clean Flicks of Colorado v. Soderbergh, 433 F. Supp. 2d 1236 (D. Colo. 2006), thedefendant bought legitimate DVD copies of videos, made edited “family friendly” versions of thevideos, burned the edited versions onto new DVDs, and sold each edited DVD together with theoriginal, unedited DVD. This required “maintaining a one-to-one ratio of the original and edited
versions,” like Open Library, id. at 1240, but was held infringing even though the Plaintiffs “donot compete in this alternative market” for edited versions of their films. Id. at 1242. If the oneto-one ratio did not sufficiently favor defendant in Clean Flicks, even when Plaintiffs did notparticipate in the “alternative market,” it is an even weaker factor here, where copyright owners
actively license libraries to lend ebooks.
3.

Open Library Directly Harms the Market for Back In Print Works andAdversely Impacts Authors’ Ability to Reuse Works

The harm that results from Internet Archive’s unauthorized scanning and distribution of
copyrighted works is not limited to substitution of publisher’s library ebook lending licenses or
consumer ebooks. It radiates beyond the market for the publishers’ books, which, although themost visible and dominant market for literary works, is not the only one. A vibrant market exists
for books that are brought back in print, for resales of rights, and for reissues after titles have beenretired from a publishers’ catalog. Amici respectfully ask the court to consider the implications ofIA’s activities on this market, which may be smaller and less prominent than the traditional market
for publishers’ books, but that is no less significant to author earnings.
IA’s activities harm authors both by substituting their potential income from publishers’
consumer sales and ebook licenses, and by substituting for ebook editions of books that publishers
have ceased production (referred to as “out of print”) and the authors have brought back into print,
or which they intend to republish. Authors generally rely on multiple revenue streams to pull
together a living, and they are increasingly exploring new ways to revive out of print works when-15-

Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 20 of 35

the rights have reverted to them, especially as ebooks. Yet IA denies this market even exists. It
claims that copying and distributing “out of print” books is fair use, 13 because unavailability of abook through normal trade channels means there is no market for the work, and hence there canbe no harm to the author. This wanton assumption ignores the myriad ways in which authors reuse
and reissue works that have gone out of print and to which publishers have reverted rights.
i.

Rights Reversion and the Back In Print Market

Most trade book contracts grant exclusive rights to the publisher for the “duration of
copyright” (life of the author plus seventy years), but they also contain a clause known as thereversion of rights or out of print clause, which allows authors to request their rights back if thebook is out of print or no longer available for sale through normal retail channels or available
through the publisher’s catalog, or if sales fall under a certain amount. 14 Once such event occurs,
the author has a right to demand a reversion of rights, and the publisher typically has six months
to respond by either informing the author that it intends to reprint the book (and then do so withina specified time thereafter) or to grant the request. A reversion of rights or out of print clause is a
critical component of a publishing contract and for authors, getting rights back is a highly
consequential event because it allows them to exploit the work in myriad other ways to generate
income. Each year, the Authors Guild’s legal team handles approximately 35-40 reversion ofrights matters, an literacy agents routinely assist their clients to get rights back, and authors also
contact their publishers directly to request reversions.

13

In its Answer to the Plaintiff’s Complaint, IA, citing to the CDL White Paper, argues
that its practices fall under fair use because “[e]very book in its collection has already been
published and most are out of print.” IA Answer at p. 3; see CDL White Paper at 40.
14

This is a generalization of a “typical” trade book contract. All of the five largest
publishers follow this custom with some variation, as do most small and medium sized trade
publishers.
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Self-publishing new editions of books previously published by trade publishers is anincreasingly popular way to exploit reverted rights. Typically, the amount an author can expect toearn from the sale of a self-published copy, or even for a download of a single chapter or excerpt,
is higher than their trade royalty from an individual sale. The author’s royalty for a new
traditionally published print book is typically only 5-15% of the list price of the book (recently
smaller publishers are paying the same percentage but on net receipts, which is the amount left
over after deducting taxes, discounts, and other fees from a book’s list price). 15 From sales ofpublishers’ ebook and digital audio editions, authors typically get a 25% share of the net receipts.
By comparison, authors can obtain as much as 35-70% from each sale of a self-published copy.
Several models exist today—from self-publishing through Kindle Direct, Apple Books, Kobo toreissues by niche smaller publishers in genre markets and reading apps—for authors to reissue outof print books as new editions, and earn from them.
Authors working in particular genres such as romance, mystery, horror, and thriller
frequently reissue previously published and reverted titles in “boxed sets” with new books or ingenre-specific anthologies. Academic authors often reissue titles, which keeps their work relevant
and accessible while also contributing to their income. Authors also use their reverted titles tocreate first edition digital ebooks of their works (which Open Library’s “scanned” copies directly
pre-empt), as well as audio works. Since 2016, the Authors Guild’s “Back in Print” program has
republished 215 books by Authors Guild members.

15

Publishers incentivize retailers and bookstores to carry books by offering discounts,
which can range anywhere between 35% to 50% or higher of the book’s list price. For instance, if
the author’s contract with a publisher states a 10% list price royalty on a book priced at $25, theauthor gets $2.5 per copy sold. If the contract provides for a 10% royalty on net receipts for a $25
book with a 35% discount to the retailer, the author’s payment will be reduced accordingly aftertaxes and the discount are deducted from the sale price.
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Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 22 of 35ii.

The significance of author income from back in print books and reuses

The total revenue generated by reissues in many cases may be modest in comparison towhen a book first enters the market, but the income authors receive from them is far from negligible
and can sometimes make the difference between being able to pay the mortgage or not. As such,the harm to authors from the impact of IA’s activities on this market is in some ways more
profound due to two related reasons: (1) the smaller size of the back in print market compared tothe traditional market; and (2) the overall decline in author incomes. Because the size of the backin print market is relatively small compared to the market for new books, the displacement of asmall number of total potential sales by Open Library has a disproportionate impact on the author’s
earnings as those lost sales cannot be rectified through overall volume of sales for that title. If areader who is interested in the book searches for it online and finds an unauthorized scanned copy
on Open Library, there will be less of an incentive for the reader to pay for an author’s selfpublished copy, from which the author may stand to gain anywhere between 35-70% of the salemade through a typical online ebook retailer ($7-$14 for a $20 book). If ten potential users opt for
the unauthorized scan over the authorized copy, then the author has already lost $70-$140. This
amount may seem like a pittance to some but weighed against the extreme depression in author
incomes over the years, it is a lot.
According to the 2018 Authors Guild income survey the median writing income of fulltime book authors was $20,300, which is below the current federal poverty guidelines for a familyof three.16 In this precarious context, even a few hundred dollars per year from reissue earnings
amounts to significant earnings. To illustrate the importance of reissue earnings and how authors

https://www.authorsguild.org/industry-advocacy/authors-guild-survey-shows-drastic42-percent-decline-in-authors-earnings-in-last-decade/ (accessed August 12, 2022).
16

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Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 23 of 35

participate in this market, amicus The Authors Guild shares just a few anecdotes from theirmembers:
I’m the author of more than 100 novels, most of them traditionallypublished. I have been reissuing my romances, mysteries and othernovels since 2010. During this time, my earnings from my reissued
books have kept me solvent through treatment for breast cancer,
through putting two sons through college, and through numerous
other financial challenges.
At this point, I have reissued
approximately 80 of my books. (Jacqueline Diamond)Reversions allowed me to exploit digital rights. I was able to invest
in a start-up imprint, which has republished all the HarperCollins
originals, and I receive income directly from those sales. A trilogy
was repackaged as a boxed set and placed in KDP Select, and all
royalties and read-through percentages accrue to me. (Author
prefers to remain anonymous)
I’m making about 8K a year. I'd probably do better if I were betterat publicity. This is obviously far less than I made at [publisher] but
it's still money from books I wrote 10 , 15, and 20 years ago. (Author
prefers to remain anonymous)
I did a four book fantasy series for Scholastic called THE
UNICORN CHRONICLES. The first volume sold over a million
copies. I regained the rights to the series and have been republishing
the books myself. Right now the books are published as ebooks
through a number of vendors, and as print on demand via Amazon.
The way they are tracking, I expect to make about $10,000 fromthem this year. I should note that this is with virtually no publicity
or advertising, save for pushing them on my FB and Twitter pages.
(Bruce Coville)
Reissuing previously published works to generate income is by no means restricted towriters. Reissued works is a substantial source of income for photographers, and artists, who
license illustrations, designs, and photography for new uses. Visual works and images that become
recognizable and popular through prior use regularly repackaged into commercial products andopen new markets for their creators.

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Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 24 of 35

4.

Open Library Will Deprive Copyright Owners of Royalties Paid For
Lending By Non-U.S. Libraries Under the Public Lending Right

Another source of revenue for members of amici is royalty income from the public lending
right (“PLR”). Currently, thirty-four countries – including the United Kingdom, every country inEurope, Canada, Israel, and Australia – support authors, illustrators, photographers, translators,
and other creators with cash payments from the national government in compensation for the freelibrary lending of their books.17 Writing in WIPO Magazine, Jim Parker observed in 2018 that
“PLR payments make a real difference in authors’ lives . . . . And PLR can be a life-saver forestablished and retired writers with long backlists of published works which remain available forloan in public libraries even when their works are out of print.” 18
Even U.S. authors receive a share of PLR-royalties collected in certain countries. In justthe last three years, the Authors Registry, an affiliate of the Authors Guild, has received $952,466
in PLR fees from just one country, the Netherlands, of which it has thus far paid out $718,583 toindividual U.S. authors. While the average payment was $157, over 150 payments to authors wereover $1,000, and the largest was $10,864.
If IA’s activities were to become widespread, library lending to members of the public incountries that have implemented PLR would inevitably decline, as readers worldwide would
access IA’s unauthorized frictionless Open Library substitutes rather than borrowing either print
or electronic copies from their local libraries. Such non-U.S. revenues are properly cognizable asmarket harm under the fourth fair use factor. Not only is this market “traditional, reasonable or17

www.prlinternational.com, accessed July 30, 2022. An additional twenty-nine countries
are in the process of implementing PLR. Id.
18

Jim Parker, “The Public Lending Right and What It Does,” WIPO Magazine June 2018,https://www.wipo.int/wipo_magazine/en/2018/03/article_0007.html (accessed July 30, 2022).
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Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 25 of 35

likely to develop,” American Geophysical Union v. Texaco, Inc. 60 F.3d 913, 930 (2d Cir. 1994),
it exists and is mandated by law in most of the developed world.
CONCLUSION
Authors, illustrators, photographers, and other creators of books make a vital contribution
to education, to literacy, and to the shared culture on which our society rests. Impoverishingauthors threatens to impoverish that culture. Libraries are an essential means by which thosecontributions are made available to the public, but without the creators, libraries would havenothing to lend. Libraries have always been a critical part of the overall publishing ecosystem andhave always paid for each of the copies they lend out to their users. To sustain the publishingeconomy that allows authors and other creators to continue to create, they should continue to doso. For the foregoing reasons, and the reasons set forth in Plaintiffs’ Memorandum of Law (ECF99), Plaintiffs’ motion for summary judgment should be granted in all respects.
Dated: August 12, 2022
Respectfully submitted,s/ Robert W. Clarida
Robert W. Clarida
Brett Van Benthysen
REITLER KAILAS & ROSENBLATT LLP
885 Third Avenue, 20th Floor
New York, NY 10022
Tel: (212) 209-3044
rclarida@reitlerlaw.com
bvanbenthysen@reitlerlaw.com
Counsel for Amici Curiae-21-Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 26 of 35

CERTIFICATIONThe undersigned hereby certifies that the [PROPOSED] MEMORANDUM OF LAW OFAMICI CURIAE THE AUTHORS GUILD, INC., WESTERN WRITERS OF AMERICA,
CANADIAN AUTHORS ASSOCIATION, AMERICAN PHOTOGRAPHIC ARTISTS, THE
WRITERS’ UNION OF CANADA, INTERNATIONAL AUTHORS FORUM, AMERICANSOCIETY OF MEDIA PHOTOGRAPHERS, ROMANCE WRITERS OF AMERICA, SOCIETY
OF CHILDREN’S BOOK WRITERS AND ILLUSTRATORS, EUROPEAN WRITERSCOUNCIL, NATIONAL WRITERS UNION, GRAPHIC ARTISTS GUILD, AMERICANSOCIETY FOR COLLECTIVE RIGHTS LICENSING, SOCIETY OF AUTHORS, SISTERS IN
CRIME, INTERNATIONAL FEDERATION OF JOURNALISTS, DRAMATISTS GUILD OFAMERICA, NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION, NOVELISTS INC.,ASSOCIATION OF AUTHORS AGENTS, THE AMERICAN SOCIETY OF JOURNALISTS
AND AUTHORS, THE UNION DES ÉCRIVAINES ET DES ÉCRIVAINS QUÉBÉCOIS, AND
EUROPEAN VISUAL ARTISTS IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARYJUDGMENT complies with the formatting and count limit set forth in Rule II.D. of the Individual
Practices Of Judge John G. Koeltl. The word count, exclusive of the caption, table of contents,
table of authorities, signature block, and appendix is 6350 according to the word-processing systemused to prepare the document.
Dated: August 12, 2022
s/ Robert W. Clarida
Robert W. Clarida-22-

Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 27 of 35

APPENDIXIDENTITY AND INTEREST OF AMICI CURIAE
Founded in 1912, The Authors Guild, Inc. (the “Guild”) is a national non-profit associationof over 12,000 professional, published writers of all genres including periodicals and othercomposite works. The Guild works to promote the rights and professional interests of authors invarious areas, including copyright, freedom of expression, and fair pay. Many Guild members earn
their livelihoods through their writing. Their work covers important issues in history, biography,
science, politics, medicine, business, and other areas; they are frequent contributors to the mostinfluential and well-respected publications in every field. The Guild’s members are the creators on
the front line, fighting for their constitutional rights under copyright to reap financial benefits fromtheir labors.
American Photographic Artists (“APA”) is a leading nonprofit organization run by, andfor, professional photographers since 1981. Recognized for its broad industry reach, APA works
to champion the rights of photographers and image-makers worldwide.

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Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 28 of 35

The American Society for Collective Rights Licensing (ASCRL) is a 501(c)(6) not-forprofit corporation founded in the United States to collect and to distribute collective rights revenue
for photography and illustration to United States authors and rights holders, and to foreign national
authors and rights holders, whose works are published in the United States. ASCRL, represents
over 16,000 illustrators and photographers and is the leading collective rights organization in the
United States for this constituency of rights owners. ASCRL is a zealous defender of the primaryrights of illustrators and photographers, and ASCRL promotes the collective administration ofrights, and the establishment of secondary rights, as alternative means of advancing and expanding
the marketplace of its constituents.
The National Press Photographers Association (“NPPA”) is a 501(c)(6) non-profit
organization dedicated to the advancement of visual journalism in its creation, editing anddistribution of copyrighted works. NPPA’s members include television and still photographers,
editors, students, and representatives of businesses that serve the visual journalism industry. Since
its founding in 1946, NPPA has vigorously promoted and defended the rights of photographersand journalists, including intellectual property rights and freedom of the press in all its forms,
especially as it relates to visual journalism.
Sisters in Crime is the premier crime writing association focused on equity and inclusion
in our community and in publishing. Founded in 1986 to represent and advocate for women crime
writers, we celebrate and honor this history with our name while we continue to work for all who
share our commitment to and love for a vibrant, inclusive community. Our 4,500+ members enjoy
access to tools to help them learn, grow, improve, thrive, reinvent if necessary. They also gain acommunity of supportive fellow writers and readers, both peers to share the peaks and valleys ofwriting, and mentors to model the way forward.

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Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 29 of 35

The Society of Children’s Book Writers and Illustrators, a nonprofit 501(c)3 organization,
is a professional organization specifically for individuals who write, illustrate, and translate forchildren and young adults. Our mission is to support those creators, and the creation of quality
children’s books in every region of the world.
The National Writers Union (NWU) is an independent national labor union that advocatesfor freelance and contract writers and media workers. The NWU includes local chapters as well as
at-large members nationwide and abroad. The NWU works to advance the economic conditions ofwriters and media workers in all genres, media, and formats. NWU membership includes, among
others, journalists, fiction and nonfiction book authors, poets, novelists, playwrights, editors,
academic writers, business and technical writers, website and e-mail newsletter content providers,bloggers, social media producers, podcasters, videographers, illustrators, photographers, graphic
artists, and other digital media workers. NWU members have created many published book-lengthworks as well as many stories, articles, poems, photographs, illustrations, and other short-form
works included in published books and e-books-25-

Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 30 of 35

The International Federation of Journalists (IFJ) is the world's largest organization ofjournalists, representing 600,000 media professionals from 187 trade unions and associations in
141 countries. Established in 1926, the IFJ is the organization that speaks for journalists within the
United Nations system and within the international trade union movement. The IFJ organizes
collective action to support journalists’ unions in their fight for fair pay, decent working conditions
and in defense of their labor rights; promotes international action to defend press freedom andsocialjusticefightsforthrough
genderstrong,free

andindependentequality

in

all

its

trade

structures,

unionspoliciesofjournalists;

andprograms;

opposes discrimination of all kinds and condemns the use of media as propaganda or to promote
intolerance and conflict; and believes in freedom of political and cultural expression. IFJ does not
subscribe to any given political viewpoint, but promotes collective action to defend humanrights, democracy and media pluralism.
The Writers’ Union of Canada (TWUC) is the national organization of professionallypublished writers. TWUC was founded in 1973 to work with governments, publishers, booksellers,
and readers to improve the conditions of Canadian writers. Now over 2,500 members strong,
TWUC advocates on behalf of writers’ collective interests, and delivers value to members throughadvocacy, community, and information. TWUC believes in a thriving, diverse Canadian culturethat values and supports writers.
Graphic Artists Guild, Inc. (GAG) has advocated on behalf of illustrators, graphic
designers, and other graphic artists for fifty years. The Guild educates graphic artists on bestpractices through webinars, Guild e-news, resource articles, and meetups. The Graphic Artists
Guild Handbook: Pricing & Ethical Guidelines raises industry standards and provides graphic
artists and their clients guidance on best practices and pricing standards.

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Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 31 of 35

The European Writers’ Council – Fédération des Associations Européennes d’Ecrivains(EWC - FAEE AISBL) is the federation of 46 national organisations of professional writers andtranslators in 31 countries including the EU and EEA, as well as Belarus, Iceland, Norway,
Montenegro, Switzerland, and United Kingdom, altogether writing in 31 languages and translated
globally. The EWC’s member associations represent 160,000 individual authors in the book andtext sector in all genres. The EWC is recognised by the European Union, UNESCO, and WIPO.
Since 1977 the EWC defends the professional interests of its represented 160,000 writers
and translators in economic, legal and political contexts, their right to remuneration andcompensation for their works, their relevance in cultural and social policy, freedom of expression,
freedom of association, and the importance of lesser spoken and written languages.
In particular, the EWC champions the diversity of literatures while raising awareness forboth the role of authors in society and the need to have their social, moral and economic rights
respected in the digital age. This is especially relevant when their numerous translations are
distributed digitally, and their legal right to remuneration must be guaranteed.
500,000 works are published in Europe each year. A significant proportion of which areboth literary and non-fiction works are distributed in original or translation in the Anglo-American
markets and make a notable contribution to the economic ecosystem. Accordingly, we also focus
our attention on safeguarding the legitimate moral and economic interests of our writers andtranslators in a global context.
Novelists, Inc., is a group of multi-published authors whose statement of purpose is toprovide a communications network among published authors of popular novels; to further the
professional interests of the organization's members; to pursue such other goals to be deemed
beneficial to the membership.

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Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 32 of 35

Founded in 1948, the American Society of Journalists and Authors is the nation's largest
professional organization for independent nonfiction writers. Our members are outstanding
nonfiction freelance journalists and book authors who meet ASJA’s exacting standards ofprofessional achievement. ASJA serves the entire freelance and publishing communities, througha variety of programs and initiatives. We support the plaintiffs' efforts to protect the rights of both
our members and non-member journalists and authors whose careers will be adversely affected if
Internet Archives prevails in this action.
Canadian Authors Association (CAA) is Canada’s first and longest-running national
writers’ organization. Founded in 1921 by Stephen Leacock and other prominent authors of theday, CAA provides writers with a wide variety of programs, services and resources to help themdevelop their skills in both the craft and the business of writing, enhance their ability to earn aliving as a writer, and have access to a Canada-wide network of writers and publishing industry
professionals.
CAA is a membership-based organization for writers in all areas of the profession—
aspiring, emerging and professional—in every genre and across all writing-related professions. As
a not-for-profit national arts service organization with charitable status, much of what CAA does
benefits all writers, whether they are members or are affiliated with us as partners or through otherwriting groups.
The Association of Authors’ Agents (AAA) is a British voluntary trade association whose
members are all UK- and Republic of Ireland-based literary agencies.

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Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 33 of 35

International Authors Forum (IAF) has over 80 member organisations, representing over
700,000 authors and campaigns for their interests in every country from around the globe,
including countries in North America, Europe, Africa, Asia, and Oceania. Member organisations
include artists societies, writers’ unions, audio-visual authors guilds and collecting societies. These
represent all types of writers and visual artists including academic, educational and scientificwriters, as well as poets, novelists, screenwriters, fine artists, designers and photographers.
Our organization is dedicated to the protection and advancement of authors’ rights andinterests. The International Authors Forum advocates for balanced copyright and contracting lawsthat guarantee fair treatment for authors and promotes authors’ rights and collective management
in order to ensure equitable compensation for authors. It also provides authors’ organisations withan international platform for cooperation and networking.
Recognized as a voice for authors on the world stage, our organization participates ininternational fora, government consultations, litigation, and conferences. International Authors hasa deep understanding of the impact of copyright treaties, jurisprudence and legislation on the global
arts, journalism, research, academic writing, and translation industries.
The Society of Authors is the largest UK trade union for writers. Established in 1884, its
membership of nearly 12,000 includes writers, illustrators, and literary translators of all kinds andgenres. It provides free individual advice to its members, and campaigns and lobbies on the issues
that most affect authors.

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Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 34 of 35

A core focus of The Society of Authors’ campaigns is on fair renumeration, strong
copyright laws and freedom of expression. Authors cannot produce and live from their workwithout having the rights, enforceable and enshrined in law, to control when and how their work
is disseminated, to ensure they are credited and to be duly compensated. They oppose online piracy
and uses of their work without consent in the strongest possible terms. Free availability of books
is an essential threat not only to sales and royalties, but also to the perceived value of creativity.
The
501(c)(6)AmericanSociety

non-profit

trade

of

Media

association

Photographers,
representingInc.

thousands(the “ASMP”)
ofmembers

is

a

who

create and own substantial numbers of copyrighted photographs, films, and othercreative works. These members all envision, design, produce, and sell their works
in the commercial market to entities as varied as multinational corporations to local
mom-and-pop stores, and every group in between. In its seventy-six-year history,
the ASMP has been committed to protecting the rights of all visual creators.
Western Writers of America, formed in 1953, is the pre-eminent association of professional
writers dedicated to the traditions, legends, development and history of the American West. Our
mission is to create, appreciate, publicize, and promote the Literature of the West for the World.®
We have more than 750 members, who write books (fiction and nonfiction), screenplays, poetry,songs, and short material (fiction and nonfiction).

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Case 1:20-cv-04160-JGK-OTW Document 160-1 Filed 08/12/22 Page 35 of 35

The

Dramatists

Guild

of

America

is

the

only

professionalorganization

promoting the interests of playwrights, composers, lyricists, and librettists writing
for the stage. Established over 100 years ago for the purpose of aiding dramatists
in protecting both the artistic and economic integrity of their work, The Dramatists
Guild of America continues to educate, and advocate on behalf of, its over 8,000
members. The Dramatists Guild of America believes a vibrant, vital theater is an
essential element of this country’s ongoing cultural debate, and seeks to protect
those individuals who write for the theater to ensure its continued success.
Romance Writers of America (“RWA”), founded in 1980, is a nonprofit
trade association, with a membership of more than 4,000 romance writers andrelatedindustryinterestsofprofessionals,

career-focused

whoseromancemissionwritersistoadvancethethrough

networking

andprofessional
advocacy.

RWA works to support the efforts of its members to earn a living, to make a fulltime career out of writing romance—or a part-time one that supplements his/her
main income.
The Union des écrivaines et des écrivains québécois (UNEQ) is the only representative
association of literary artists in Québec (Canada), with over 1,600 members. This professional
union has been working since 1977 to defend the socioeconomic rights of writers and to promote
Québec literature in Québec, Canada, and abroad.
European Visual Artists (EVA) represents all collective management organizations in the
EU which are managing visual repertoire for over 130,000 authors of visual works, including finearts, photography, illustration, street art, design, and architecture.

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