Hachette Book Group, Inc. v. Internet Archive

Background

Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC brought the action against Internet Archive. The plaintiffs alleged copyright infringement based on Internet Archive’s unauthorized creation of electronic books from print copies and its public display, distribution, and performance of those electronic books through its websites.

The opinion states that, on March 24, 2023, the court granted the plaintiffs’ motion for summary judgment and held Internet Archive liable for copyright infringement involving the plaintiffs’ works. The consent judgment addresses 127 works in suit and states that Internet Archive’s controlled digital lending and National Emergency Library activities involving those works constituted copyright infringement.

Judgment and Permanent Injunction

The court entered judgment for the plaintiffs on their copyright-infringement claims under 17 U.S.C. § 501. It permanently enjoined Internet Archive, its officers, agents, employees, attorneys, and others acting in concert with them from specified conduct involving a “Covered Book.” The definition covers an in-copyright book or portion of a book in which a plaintiff or its subsidiary or corporate affiliate controls an exclusive copyright right, commercially makes the title available in an electronic text format, and has notified Internet Archive of the title through a machine-readable catalog or similar notice. The definition applies after 14 days have elapsed from receipt of the notice and includes all in-copyright editions of the title.

The injunction prohibits the covered parties from digitally distributing, publicly displaying, or publicly performing covered books in, from, or to the United States. It also prohibits reproducing or creating derivative works of covered books for unauthorized distribution, inducing or knowingly and materially contributing to certain infringing activity, and profiting from another person’s or entity’s infringement while declining to exercise a right to stop or limit it.

Exceptions and Clarifications

The injunction states that the covered parties are not in violation based on uses to which specified Copyright Act exceptions and limitations properly apply, although the plaintiffs reserved the right to contest their applicability. It also preserves uses expressly authorized in writing by a rights holder, certain accessibility uses that meet statutory conditions or are consistent with fair use, and distribution, public display, or public performance of short portions of a covered book when consistent with fair use.

The judgment does not grant a license or permission to use copyrighted works. It also does not establish that conduct outside the injunction’s specific prohibitions is non-infringing, waive the plaintiffs’ claims concerning such conduct, or limit the plaintiffs’ ability to seek damages, costs, or attorney’s fees under the Copyright Act. The order further states that it does not limit defenses or remedy limitations under the Copyright Act’s section 512 provisions.

Other Terms and Disposition

The parties agreed to a stipulated monetary judgment payment under a separate confidential agreement. The payment was conditioned on Internet Archive’s reservation of its right to appeal the copyright-liability finding. The judgment also preserves Internet Archive’s right to appeal that finding and the permanent injunction on the ground that it should not have been held liable for copyright infringement. It preserves any party’s right to appeal the dispute over whether “Covered Book” applies to books in any format or only in electronic text format.

The injunction took effect immediately and was not stayed pending appeal. Internet Archive had to provide copies to specified persons and entities, including Open Library of Richmond and libraries whose print books were counted toward Internet Archive’s maximum lendable digital copies. Internet Archive also had to submit a sworn compliance declaration within 30 days. The court retained exclusive and continuing jurisdiction to interpret, implement, and enforce the injunction, directed the clerk to enter judgment for the plaintiffs, and directed the clerk to close the case.