Some Unexpected Sanity in the Hachette v. Internet Archive Lawsuit

This month, a federal choose weighed in on negotiations between the Web Archive and the publishers suing it over its e-book lending library – and the choice was surprisingly sound.

For anybody who hasn’t been following alongside at dwelling: 4 publishers (Wiley, Hachette, Harper Collins, and Penguin-Random Home) sued the Web Archive, alleging that its managed digital lending (CDL) program violated copyright legal guidelines and inflicted thousands and thousands of {dollars} in misplaced gross sales. In March, the choose rejected Web Archive’s argument that its lending program was a good use, and located in favor of the publishers. The Archive, although it plans to enchantment the choice, entered into negotiations with the publishers over the phrases of the ultimate judgment. These negotiations have been occurring behind closed doorways, and the primary trickle of public info got here not too long ago, when the events approached the choose to settle their one remaining disagreement concerning the phrases of the settlement.

In brief, the events disagreed about which works the Archive must cease lending in the course of the appeals course of. Publishers insisted that the Archive wanted to cease lending any of the publishers’ works that had been “commercially obtainable,” no matter format; the Archive argued that they need to solely be barred from lending books that had been already commercially obtainable as e-books.

The choose, shocking many observers, sided with the Archive. The publishers’ complete case, the choose reasoned, was based mostly on works for which they had been already producing e-books. That was the idea of the grievance, the honest use evaluation within the case, and the judgment itself. Books for which there have been no formally licensed e-books introduced a completely totally different honest use evaluation, which neither of the events had briefed. The publishers couldn’t, the choose held, use a settlement to backdoor a ban on lending a wider class of works than had been at difficulty within the swimsuit.

Whereas it’s true that this resolution (a trial court docket choose serving as a tiebreaker between two events negotiating a proposed judgment) doesn’t create a very helpful authorized precedent, from a coverage perspective it’s enormous. Publishers have lengthy argued that library loans are “replacements” for shopper gross sales – that each time somebody borrows a guide, they lose beneficial revenue. For those who settle for that (spurious) argument, the follow-on query must be: a sale of what? An e-book? What about books for which there isn’t any e-book? The argument that “if a library person couldn’t get an e-book, they’d positively purchase the bodily guide (which, by the best way, we’re now not printing)” is a number of leaps of logic faraway from actuality. 

A part of that is wishful considering on publishers’ half (and posturing – after all they need to declare that each one of their publications are immensely beneficial), however it’s additionally as a result of means the regulation constructions damages. Statutory damages are a authorized software which permit plaintiffs to get well a set fee, with out having to show any precise financial hurt. Even when the books at difficulty had been (like a sure pundit’s latest autobiography) a complete flop, and the writer suffered $0 in misplaced gross sales from a library digitizing and lending copies of it, that writer may nonetheless demand $150,000. Statutory damages deal with all works as bestsellers, and are an infinite a part of what makes copyright lawsuits so chilling. 

Monday’s resolution, although, brings a much-needed diploma of rationality to this complete lawsuit. Publishers can not merely declare that lending = hurt with out truly bringing authorized arguments to bear. And that’s a very good factor.