Case 1:20-cv-04160-JGK Document 33 Filed 07/28/20 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

HACHETTE BOOK GROUP, INC.,
HARPERCOLLINS PUBLISHERS LLC,
JOHN WILEY & SONS, INC., and
PENGUIN RANDOM HOUSE LLC,
Plaintiffs,

Case No. 1:20-CV-04160-JGK

JURY TRIAL DEMANDED

v.
INTERNET ARCHIVE and DOES 1
through 5, inclusive,
Defendants.
DEFENDANT INTERNET ARCHIVE’S ANSWER AND AFFIRMATIVE DEFENSES
TO THE COMPLAINT

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Defendant Internet Archive, by its undersigned counsel, hereby answers the Complaint of
Plaintiffs Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc.,
and Penguin Random House LLC (collectively, “Plaintiffs”) as follows, based on information
reasonably available to the Internet Archive.
PRELIMINARY STATEMENT
The Internet Archive, a 501(c)(3) public charity, is a nonprofit library that has had one
guiding mission for almost 25 years: to provide universal access to all knowledge. It is a Library
of Alexandria for the twenty-first century that, thanks to digital technologies and the Internet,
excels in a way the Library of Alexandria never could. Through the Internet Archive, people
who do not live in world capitals can access the same cultural and informational resources as
those who do.
The Internet Archive does what libraries have always done: buy, collect, preserve, and
share our common culture. In furtherance of that mission, the Internet Archive has received
grant funding from the National Endowment for the Humanities, the National Science
Foundation, and the federal government’s Institute of Museum and Library Services, among
many other sources. Many libraries and archives, including the Library of Congress, Boston
Public Library, University of Illinois at Urbana-Champaign, and smaller community libraries
like the Allen County Public Library trust the Internet Archive to digitize books and other
materials in their collections in order to preserve physical texts and to facilitate public access.
The Internet Archive is part of a network of libraries around the world—each of which is using
digital technologies to meet the many challenges of serving patrons with diverse needs and
differing abilities and to ensure that the growing storehouse of human creativity is not lost
because no one has the capacity to preserve it.
Like Plaintiffs, the Internet Archive believes that “[b]ooks are a cornerstone of our
culture and system of democratic self-government” and “play a critical role in education.”
Accordingly, democratizing access to information, and facilitating access to books in particular,
has been a core part of the Internet Archive’s mission for decades. But, for many people,

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distance, time, cost, or disability pose daunting and sometimes insurmountable barriers to
accessing physical books. Digitizing and offering books online for borrowing unlocks them for
communities with limited or no access, creating a lifeline to trusted information. Readers in the
Internet age need a comprehensive library that meets them where they are—an online space that
welcomes everyone to use its resources, while respecting readers’ privacy and dignity.
To make this vision of a comprehensive Internet library a reality, the Internet Archive
offers digitized books in a variety of ways. Books published prior to 1924 can be downloaded
without restriction, and people with visual impairments can access more recent books using
specially-designed encrypted technologies. The corpus of digitized books is used by data
scientists to do computational analysis of texts, yielding a broader picture of human thought. To
mirror traditional library lending online for everyone else, the Internet Archive allows patrons to
borrow modern books via a process called Controlled Digital Lending (“CDL”).
Under CDL, the Internet Archive and other libraries make and lend out digital scans of
physical books in their collections. Replicating longstanding brick-and-mortar practice, only one
person can borrow one copy at a time. With the support and participation of hundreds of other
libraries, the Internet Archive has been digitizing books lawfully acquired through purchase or
donation and, since 2011, lending those digitized books on this own-to-loan basis. The Internet
Archive loans books to its patrons using the same industry-standard technical protections that
publishers themselves use to make books available electronically. Libraries have collectively
paid publishers billions of dollars for the books in their print collections and are investing
enormous resources in digitization in order to preserve those texts. CDL helps them take the
next step by making sure the public can make full use of the books that libraries have bought.
This activity is fundamentally the same as traditional library lending and poses no new
harm to authors or the publishing industry. In fact, the Internet Archive fosters research and
learning by making sure people all over the world can access books and by keeping books in
circulation when their publishers have lost interest in providing access. Nevertheless, where
authors or publishers wish to deny the public access to their works through CDL, the Internet

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Archive honors those requests. (All of the works at issue in this case have been removed from
the Internet Archive’s websites.)
The Internet Archive has made careful efforts to ensure its uses are lawful. The Internet
Archive’s CDL program is sheltered by the fair use doctrine, buttressed by traditional library
protections. Specifically, the project serves the public interest in preservation, access and
research—all classic fair use purposes. Every book in the collection has already been published
and most are out of print. Patrons can borrow and read entire volumes, to be sure, but that is
what it means to check a book out from a library. As for its effect on the market for the works in
question, the books have already been bought and paid for by the libraries that own them. The
public derives tremendous benefit from the program, and rights holders will gain nothing if the
public is deprived of this resource.
During the early days of the COVID-19 crisis, in response to urgent pleas from teachers
and librarians whose students and patrons had been ordered to stay at home, the Internet Archive
decided to temporarily permit lending that could have exceeded the one-to-one owned-to-loaned
ratio. With millions of print books locked away, digital lending was the only practical way to get
books to those who needed them. The Internet Archive called this program the “National
Emergency Library” and planned to discontinue it once the need had passed. Twelve weeks
later, other options had emerged to fill the gap, and the Internet Archive was able to return to the
traditional CDL approach.
Contrary to the publishers’ accusations, the Internet Archive and the hundreds of libraries
and archives that support it are not pirates or thieves. They are librarians, striving to serve their
patrons online just as they have done for centuries in the brick-and-mortar world. Copyright law
does not stand in the way of libraries’ right to lend, and patrons’ right to borrow, the books that
libraries own.

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NATURE OF THE ACTION 1
1.

The Internet Archive admits that the Plaintiffs allege copyright infringement, that

Internet Archive is a named Defendant, and that the Complaint alleges facts concerning “Open
Library” and/or “National Emergency Library.” The Internet Archive lacks sufficient knowledge
or information to admit or deny the remaining allegations in this paragraph and on that basis
denies them.
2.

Denied.

3.

The Internet Archive admits that more than 1.3 million books are available on

archive.org for one patron to borrow at a time. The Internet Archive denies the remaining
allegations of this paragraph.
4.

Admitted.

5.

The Internet Archive admits that, in 1787, the Framers adopted the Copyright

Clause of the Constitution, explicitly authorizing Congress “[t]o promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries.” U.S. Const., Art. I, § 8, cl. 8. The Internet Archive
further admits that, in 1790, the First Congress enacted the first Copyright Act. The Internet
Archive lacks sufficient knowledge or information to admit or deny the remaining allegations in
this paragraph and on that basis denies them.
6.

The Internet Archive admits that books from a variety of genres are available to

patrons for borrowing on archive.org. The Internet Archive denies the remaining allegations of
this paragraph.
7.

Denied.

8.

Denied.

9.

Denied.

10.

Denied.

1

Internet Archive neither admits nor denies the contents of the various headings and
subheadings in the Complaint, which are reproduced herein solely for convenience.

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11.

Denied.

12.

The Internet Archive admits that libraries are trusted institutions that serve

communities. The Internet Archive admits that a study authored by the Copyright Office titled
“Legal Issues in Mass Digitization” published in October 2011 contains the statement “The
Section 108 exception does not contemplate mass digitization.” The Internet Archive denies the
remaining allegations of this paragraph.
13.

Denied.

14.

Denied.
THE PARTIES

A.

Plaintiffs

15.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them.
16.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them.
17.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them.
18.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them.
19.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them.
20.

The Internet Archive admits that the works identified in Exhibit A to the

Complaint were at one time available for patrons to borrow via archive.org. The Internet
Archive lacks sufficient knowledge or information to admit or deny the remaining allegations in
this paragraph and on that basis denies them. To the extent allegations in this paragraph state
legal conclusions, they do not require a response. To the extent a response is required, the
Internet Archive denies the allegations.
21.

The Internet Archive lacks sufficient knowledge or information to admit or deny

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the allegations in this paragraph and on that basis denies them.
22.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them.
B.

Defendant

23.

Admitted.

24.

The Internet Archive admits that it is registered with the New York Department of

State to transact business and accept service of process in the State of New York. The Internet
Archive further admits that some of its patrons live in New York. The Internet Archive further
admits that some New York libraries have engaged the Internet Archive to digitize books for
them. The Internet Archive further admits that some of its donors are located in New York. The
Internet Archive lacks sufficient knowledge or information to admit or deny the remaining
allegations in this paragraph and on that basis denies them.
25.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the remaining allegations in this paragraph and on that basis denies them. To the extent
allegations in this paragraph state legal conclusions, they do not require a response. To the
extent a response is required, the Internet Archive denies the allegations.
26.

The Internet Archive admits that it provides some services to other nonprofit

institutions and that those institutions help defray the costs of providing those services. The
Internet Archive admits that over the last 10 years, the Internet Archive has received donations,
grants, and other revenue totaling more than $100 million. The Internet Archive lacks sufficient
knowledge or information to admit or deny the remaining allegations in this paragraph and on
that basis denies them.
27.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them.
JURISDICTION AND VENUE
28.

The Internet Archive does not contest that this Court may exert subject matter

jurisdiction over Plaintiffs’ claims. The remaining allegations in this paragraph are legal

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conclusions to which no response is required. To the extent any response is required, the Internet
Archive denies the allegations in this paragraph.
29.

For the purposes of this action only, the Internet Archive does not contest it is

subject to personal jurisdiction in New York State. The Internet Archive lacks sufficient
knowledge or information to admit or deny the remaining allegations in this paragraph and on
that basis denies them. To the extent allegations in this paragraph state legal conclusions, they
do not require a response. To the extent a response is required, the Internet Archive denies the
allegations.
30.

For the purposes of this action only, the Internet Archive does not contest it is

subject to personal jurisdiction in New York State. The Internet Archive admits that it is
registered to do business in New York State. The Internet Archive lacks sufficient knowledge or
information to admit or deny the remaining allegations in this paragraph and on that basis denies
them. To the extent allegations in this paragraph state legal conclusions, they do not require a
response. To the extent a response is required, the Internet Archive denies the allegations.
31.

For this purposes of this action only, the Internet Archive admits that venue is

proper in this District.
FACTUAL BACKGROUND
A.

The Book Publishing Ecosystem
i.

32.

Publishers and Authors Rely on Copyright Law to Create
Functioning Markets for Books

The Internet Archive admits that books are a cornerstone of our culture and

system of democratic self-government and play a critical role in education. The Internet Archive
lacks sufficient knowledge or information to admit or deny the remaining allegations in this
paragraph and on that basis denies them.
33.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them.
34.

Internet Archive lacks sufficient knowledge or information to admit or deny the

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allegations in this paragraph and on that basis denies them.
35.

The Internet Archive admits that the first Copyright Act was passed in 1790, that

there is a Copyright Clause in the Constitution, and that a subsequent Copyright Act was passed
in 1976. The remaining allegations in this paragraph are legal conclusions to which no response
is required. To the extent any response is required, the Internet Archive denies the allegations in
this paragraph.
36.

Denied.

37.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them.
38.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them.
ii.
39.

The Development of Functioning Markets for Ebooks

The Internet Archive lacks sufficient knowledge or information to admit or deny

the remaining allegations in this paragraph and on that basis denies them.
40.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the remaining allegations in this paragraph and on that basis denies them.
41.

The Internet Archive admits that publishers sell copies of print books without any

restrictions. The Internet Archive lacks sufficient knowledge or information to admit or deny the
remaining allegations in this paragraph and on that basis denies them.
42.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the remaining allegations in this paragraph and on that basis denies them.
43.

The Internet Archive admits that Congress passed the DMCA in 1998. The

Internet Archive lacks sufficient knowledge or information to admit or deny the remaining
allegations in this paragraph and on that basis denies them. To the extent allegations in this
paragraph state legal conclusions, they do not require a response. To the extent a response is
required, the Internet Archive denies the allegations.
44.

The Internet Archive lacks sufficient knowledge or information to admit or deny

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the remaining allegations in this paragraph and on that basis denies them.
45.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the remaining allegations in this paragraph and on that basis denies them. To the extent
allegations in this paragraph state legal conclusions, they do not require a response. To the
extent a response is required, the Internet Archive denies the allegations.
iii.
46.

The Established Market Equilibrium Between Authors, Publishers,
and Libraries

The Internet Archive admits that public libraries are among the most cherished

institutions in this country. The Internet Archive lacks sufficient knowledge or information to
admit or deny the remaining allegations in this paragraph and on that basis denies them.
47.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them.
48.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them.
iv.
49.

Plaintiffs and Libraries Reacted Rapidly to Ensure Library Patrons
Have Access to Books During the COVID-19 Lockdown

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them.
50.

Denied.

51.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them. To the extent allegations in this
paragraph state legal conclusions, they do not require a response. To the extent a response is
required, the Internet Archive denies the allegations.
B.

Internet Archive Unlawfully Disrupts the Book Publishing Ecosystem by
Infringing Copyright on an Industrial Scale

52.

Denied.
i.

53.

Internet Archive

The Internet Archive admits that Brewster Kahle founded the Internet Archive in

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1996. The Internet Archive further admits that it provides the Wayback Machine and
digitization of public domain materials. The Internet Archive further admits that such services
are excluded from Plaintiffs’ allegations in this lawsuit. The Internet Archive denies the
remaining allegations of this paragraph.
54.

The Internet Archive admits that its headquarters are located in San Francisco, but

denies that the corner of Funston and Clement Streets is an “exclusive area.” The Internet
Archive further admits that, as listed on its 2017 tax filings, it employed 150 employees in
calendar year 2017. The Internet Archive admits that Better World Libraries is a nonprofit
organization that owns book seller Better World Books. The Internet Archive denies the
remaining allegations of this paragraph.
55.

The Internet Archive admits that it has received grants from the Kahle/Austin

Foundation. The Internet Archive admits that the Kahle/Austin Foundation was established by
Brewster Kahle and his wife. The Internet Archive admits that its programs are funded by a
variety of philanthropic entities. The Internet Archive lacks sufficient knowledge or information
to admit or deny any remaining allegations in this paragraph and on that basis denies them.
56.

The Internet Archive admits that income from offering services and from

donations help defray costs the Internet Archive incurs. The Internet Archive further admits that
it provides book scanning and digitization to institutions nationwide. The Internet Archive
admits that the New York Public Library hosted the Internet Archive’s digitization activities in
New York at one time. The Internet Archive denies the remaining allegations in this paragraph.
ii.
57.

The Open Library

The Internet Archive admits that it started Open Library in 2006 with the goal of

providing “one web page for every book published.” The Internet Archive lacks sufficient
knowledge or information to admit or deny the remaining allegations in this paragraph and on
that basis denies them.
58.

Denied.

59.

Denied.

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60.

Denied.

61.

The Internet Archive admits that an article titled Where to find what’s

disappeared online, and a whole lot more: the Internet Archive by Mary Kay Magistad is dated
February 23, 2017. The Internet Archive further admits that this article contains the following
quote attributed to Brewster Kahle: “We're trying to build a Library of Alexandria, Version 2, so
can we make all the published works of humankind available to people, permanently. If you're
curious enough to want to have access, can we make it available to all the books, music, video,
web pages, software, lectures, available to anybody wanting to have access.” The Internet
Archive lacks sufficient knowledge or information to admit or deny any remaining allegations in
this paragraph and on that basis denies them.
62.

The Internet Archive admits that an article titled Internet Archive Expands

Partnerships of Open Libraries Project by Matt Enis is dated May 2, 2019. The Internet Archive
further admits that this article states that “The organization’s goal is to ramp up digitization to
500,000 books per year,” and the Internet Archive further admits that the article characterizes a
component of that goal is “to have more than four million books online for the public.” The
Internet Archive further admits that the article attributes the quote “to have more than four
million books online for the public” to Chris Freeland, whom the article identifies as the director
of Open Libraries. The Internet Archive lacks sufficient knowledge or information to admit or
deny any remaining allegations in this paragraph and on that basis denies them.
63.

Denied.

64.

The Internet Archive admits that The Man Who Solved the Market: How Jim

Simons Launched the Quant Revolution by Gregory Zuckerman is listed in Exhibit A to the
Complaint. The Internet Archive lacks sufficient knowledge or information to admit or deny the
remaining allegations in this paragraph and on that basis denies them.
65.

Denied.

66.

Denied.

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iii.
67.

The User Experience of the Website

The Internet Archive admits that a patron may sign up for an account using an

Internet connection. The Internet Archive further admits that, once a patron has created an
account, the patron can borrow books. The Internet Archive denies the remaining allegations of
this paragraph.
68.

Admitted.

69.

The Internet Archive admits that clicking on a book title takes the patron to the

title’s webpage on the Open Library website, which contains a picture of the cover, a description
of the book and bibliographic information, such as the publication date and the WorldCat catalog
number. The Internet Archive admits that the image in Paragraph 69 of the Complaint appears to
be a screenshot of the Open Library page for the book Blink. The Internet Archive admits that
this screenshot contains links to book retailers. The Internet Archive lacks sufficient knowledge
or information to admit or deny the remaining allegations in this paragraph and on that basis
denies them.
70.

The Internet Archive admits that in the screenshot in Paragraph 69 of the

Complaint, the first link to a book retailer is to Better World Books. The Internet Archive
further admits that Better World Books is an online seller of books which is owned by Better
World Libraries, a nonprofit organization. The Internet Archive denies the remaining allegations
of this paragraph.
71.

The Internet Archive admits that it labels some books on Open Library with the

terms “read” and “borrow.” The Internet Archive further admits that patrons may “read” or
borrow” a book if that book is available on archive.org. The Internet Archive further admits that
patrons who choose books available to “read” can download the digitized book in a variety of
digital formats, including as a .pdf file. The Internet Archive further admits that there is no limit
on the number of patrons that can download books available to “read” on archive.org. The
Internet Archive further admits that books available to “read” on archive.org lack DRM
restrictions. The Internet Archive further admits that patrons can access books available on

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archive.org to “read” using the BookReader interface. The Internet Archive lacks sufficient
knowledge or information to admit or deny the remaining allegations in this paragraph and on
that basis denies them.
72.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them. To the extent allegations in this
paragraph state legal conclusions, they do not require a response. To the extent a response is
required, the Internet Archive denies the allegations.
73.

The Internet Archive admits that books available for patrons to borrow on

archive.org are not known by the Internet Archive to be in the public domain. The Internet
Archive denies the remaining allegations of this paragraph.
74.

The Internet Archive admits that a patron is currently limited to borrowing ten

books at a time, to the extent those ten books are available to borrow from archive.org. The
Internet Archive further admits that some books are available to borrow from archive.org for two
weeks. The Internet Archive further admits that when a patron has borrowed ten books that are
available to borrow from archive.org, the patron must return one of these borrowed books before
he or she may borrow another book that is available to borrow from archive.org. The Internet
Archive lacks sufficient knowledge or information to admit or deny the remaining allegations in
this paragraph and on that basis denies them. To the extent allegations in this paragraph state
legal conclusions, they do not require a response. To the extent a response is required, the
Internet Archive denies the allegations.
75.

The Internet Archive admits that it enforces an “owned to loaned” ratio that

restricts the number of patrons who can at the same time borrow a book that is available to
borrow from archive.org. The Internet Archive further admits that its patrons are put on a
waitlist when there are no available copies of a book to borrow from archive.org. The Internet
Archive denies the remaining allegations in this paragraph.
76.

The Internet Archive admits that patrons that have checked out a book can read it

on the BookReader interface. The Internet Archive further admits that this interface operates in a

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web browser. The Internet Archive further admits that the image in Paragraph 76 purports to be
a screenshot of pages 166 and 167 of the book Blink, viewable on a web browser. The Internet
Archive further admits that, in BookReader, patrons can turn pages by clicking on the pages or
using left- and right-facing triangles at the bottom of the screen. The Internet Archive further
admits that, in BookReader, patrons have the option to click a button to hear the text of a book
read aloud. The remaining allegations in this paragraph state legal conclusions and therefore do
not require a response. To the extent a response is required, the Internet Archive denies the
allegations. The Internet Archive denies any remaining allegations in this paragraph.
77.

The Internet Archive admits that Adobe Digital Editions (“ADE”) facilitates

patron access to a borrowed book. The Internet Archive further admits that ADE files are
protected by DRM technology that restricts copying and allows patrons to access the file during
the fourteen-day borrowing period, after which time the patron can no longer open or access the
file. The Internet Archive denies the remaining allegations in this paragraph.
78.

The Internet Archive admits that patrons can borrow books available to “borrow”

from archive.org in two ADE formats: “Encrypted Adobe PDF” and “Encrypted Adobe ePub.”
The Internet Archive admits that the image in Paragraph 78 purports to be a screenshot of a page
from a book presented using ADE. The Internet Archive lacks sufficient knowledge or
information to admit or deny the remaining allegations in this paragraph and on that basis denies
them.
79.

The Internet Archive admits that patrons can read books they borrow on capable

devices and that examples of such devices include smartphones, tablets, and e-readers. The
Internet Archive admits that patrons can access the BookReader interface on mobile devices.
The Internet Archive lacks sufficient knowledge or information to admit or deny the remaining
allegations in this paragraph and on that basis denies them.
iv.
80.

The Open Library Is Not a Library, It Is an Unlicensed Aggregator
and Pirate Site

The Internet Archive admits that the website OpenLibrary.org states that Open

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Library is “an accredited California State Library run by the non-profit the Internet Archive.”
The Internet Archive denies any remaining allegations in this paragraph.
81.

The Internet Archive admits that it received a Library Services and Technology

Act (“LSTA”) grant in 2010/2011. The Internet Archive further admits that, in order to be
eligible for such a grant, the Internet Archive must meet certain eligibility requirements. The
Internet Archive further admits that one of those eligibility requirements is that it be a library.
The Internet Archive denies any remaining allegations in this paragraph.
82.

Denied.

83.

The Internet Archive admits that the image in Paragraph 83 of the Complaint

appears to be a screenshot of part of the homepage of OpenLibrary.org. The Internet Archive
lacks sufficient knowledge or information to admit or deny the remaining allegations in this
paragraph and on that basis denies them.
84.

The Internet Archive admits that the image in Paragraph 83 of the Complaint

appears to be a screenshot of part of the homepage of OpenLibrary.org. The Internet Archive
lacks sufficient knowledge or information to admit or deny the remaining allegations in this
paragraph and on that basis denies them.
v.

IA’s Industrial Book-Scanning Machine and Global Scanning
Operations

85.

Denied.

86.

The Internet Archive admits that it developed the Scribe System and invented the

Scribe scanner in order to digitize printed materials. The Internet Archive further admits that
individuals operate the Scribe scanners to digitize printed materials and that the images in
Paragraph 86 are of individuals using Scribe scanners to digitize printed materials. The Internet
Archive denies the remaining allegations of this paragraph.
87.

The Internet Archive admits that it has employed more than fifty employees to

work at locations with Scribe scanners and that those employees are responsible for digitizing
physical materials. The Internet Archive further admits that volunteers have also digitized

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materials. The Internet Archive further admits that it can have 3,000 books digitized in a day
when it is operating at full capacity. The Internet Archive denies the remaining allegations in
this paragraph.
88.

The Internet Archive admits that, in the past, it operated a digitization center

housed at facilities provided by the New York Public Library in the Southern District of New
York and that it digitized books there. The Internet Archive further admits that some of the
works listed in Exhibit A were digitized in New York. The Internet Archive denies any
remaining allegations in this paragraph.
89.

The Internet Archive admits that it digitizes materials using the Scribe scanner,

which photographs each page of a physical book in order to make a digital version of the book.
To the extent allegations in this paragraph state legal conclusions, they do not require a response.
To the extent a response is required, the Internet Archive denies the allegations. The Internet
Archive denies the remaining allegations in this paragraph.
vi.

Internet Archive Shifts the Costs of Its Illegal Book Digitization
Project Onto Publishers, Libraries, Open Library Users, and Other
Third Parties

90.

Denied.

91.

The Internet Archive admits that archive.org is an altruistic non-commercial

enterprise. The Internet Archive denies the remaining allegations of this paragraph.
a.
92.

Internet Archive is Paid Millions of Dollars to Infringe Copyrighted
Books and Put Them on the Open Library

The Internet Archive admits that archive.org is an altruistic non-commercial

enterprise. The Internet Archive denies the remaining allegations of this paragraph.
93.

The Internet Archive admits that the blog post by Brewster Kahle titled Internet

Archive Staff and Covid-19: Work-at-Home for Most, Full-Pay Furlough and Medical for
Scanners and dated March 25, 2020 contains the quote “Libraries paying for our scanning
services is a major source of earned income for the Internet Archive.” Internet Archive denies
the remaining allegations in this paragraph.

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94.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them. To the extent allegations in this
paragraph state legal conclusions, they do not require a response. To the extent a response is
required, the Internet Archive denies the allegations. The Internet Archive denies any remaining
allegations in this paragraph.
b.

Better World Books Feeds the Open Library with Copyrighted Books

95.

Denied.

96.

The Internet Archive admits that the quote “will allow Better World Books to

provide a steady stream of books to be digitized by the Internet Archive, thereby growing its
digital holdings to millions of books” appears in a press release accompanying the acquisition of
Better World Books by Better World Libraries, a non-profit. The Internet Archive denies that it
is or is part of a “perfect closed loop system.” The Internet Archive lacks sufficient knowledge
or information to admit or deny the remaining allegations in this paragraph and on that basis
denies them.
97.

Denied.
c.

98.

Users “Sponsor” Books that Internet Archive Wants to Infringe

The Internet Archive admits that it gives patrons the option to “sponsor” books.

The Internet Archive further admits that the image in Paragraph 98 appears to be a screenshot of
the Open Library homepage. The Internet Archive denies the remaining allegations in this
paragraph.
99.

The Internet Archive admits that the image in Paragraph 99 appears to be a

screenshot of a page for the book Back to the Batcave. The Internet Archive further admits
clicking on a “Sponsor” button on a book’s page opens the sponsorship page for that book and
that the sponsorship page for a book states that a “tax deductible donation can add this book to
the Internet Archive’s lending library, forever” and lists a cost to sponsor the book. The Internet
Archive denies any remaining allegations in this paragraph.
100.

The Internet Archive admits that the image in Paragraph 99 appears to be a

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screenshot of a page for the book Back to the Batcave, written by Adam West. The Internet
Archive further admits that the sponsorship cost of $93.12 appears in the image in Paragraph
99.To the extent allegations in this paragraph state legal conclusions, they do not require a
response. To the extent a response is required, the Internet Archive denies the allegations. The
Internet Archive denies the remaining allegations in this paragraph.
101.

Denied.

102.

Denied.
d.

103.

Internet Archive Absorbs Entire Libraries for the Website

The Internet Archive admits that a May 2019 article quotes Chris Freeland as

saying IA’s acquisition program “involves collecting donations of in-copyright materials from
libraries and booksellers, digitizing this content in [IA’s] scanning center in Cebu, the
Philippines, and then storing the physical copies in archive facilities in Richmond, CA.” The
Internet Archive further admits that Chris Freeland is director of Open Libraries. The Internet
Archive lacks sufficient knowledge or information to admit or deny the remaining allegations in
this paragraph and on that basis denies them.
104.

The Internet Archive admits that physical books that have been digitized for the

purposes of providing access to patrons through archive.org are stored in archive facilities in
Richmond, California. To the extent allegations in this paragraph state legal conclusions, they
do not require a response. To the extent a response is required, the Internet Archive denies the
allegations. The Internet Archive denies the remaining allegations in this paragraph.
105.

Denied. To the extent allegations in this paragraph state legal conclusions, they

do not require a response. To the extent a response is required, the Internet Archive denies the
allegations.
106.

Denied.
vii.

107.

Controlled Digital Lending

The Internet Archive admits that Controlled Digital Lending is not copyright

infringement. The Internet Archive denies any remaining allegations in this paragraph.

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108.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them. The remaining allegations in this
paragraph state legal conclusions and therefore do not require a response. To the extent a
response is required, The Internet Archive denies the allegations. The Internet Archive denies
any remaining allegations in this paragraph.
109.

The Internet Archive admits that Jason Scott tweeted “Only one or two unique

copies are kept – duplicates (which have increased over time) are donated to various charities or
non-profits. The books are stored at the physical archive.” The Internet Archive lacks sufficient
knowledge or information to admit or deny the remaining allegations in this paragraph and on
that basis denies them.
110.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, The Internet Archive denies the
allegations. The Internet Archive denies any remaining allegations in this paragraph.
111.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations. The Internet Archive denies the remaining allegations in this paragraph.
112.

IA admits that the Digital Millennium Copyright Act (DMCA) Section 104

Report issued by the Copyright Office states: “Time, space, effort and cost no longer act as
barriers to the movement of [digital] copies, since digital copies can be transmitted nearly
instantaneously anywhere in the world with minimal effort and negligible cost.” IA further
admits that this report is available at https://www.copyright.gov/reports/studies/dmca/sec-104report-vol-1.pdf. IA lacks sufficient knowledge or information to admit or deny the remaining
allegations in this paragraph and on that basis denies them. To the extent allegations in this
paragraph state legal conclusions, they do not require a response. To the extent a response is
required, IA denies the allegations.
113.

Denied.

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viii.
114.

The National Emergency Library

The Internet Archive admits the National Emergency Library was announced on

March 24, 2020. The Internet Archive further admits that the National Emergency Library was
made available to the public in response to the pandemic. To the extent allegations in this
paragraph state a legal conclusion they do not require a response. To the extent a response is
required, the Internet Archive denies the allegations. The Internet Archive denies the remaining
allegations in this paragraph.
115.

The Internet Archive admits that a blog post written by Brewster Kahle dated

April 7, 2020 states: “We moved in ‘Internet Time’ and the speed and swiftness of our solution
surprised some and caught others off guard. In our rush to help we didn’t engage with the creator
community and the ecosystem in which their works are made and published.” The Internet
Archive lacks sufficient knowledge or information to admit or deny the remaining allegations in
this paragraph and on that basis denies them.
116.

To the extent allegations in this paragraph state legal conclusions they do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations. The Internet Archive denies any remaining allegations in this paragraph.
117.

To the extent allegations in this paragraph state legal conclusions, they do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations. The Internet Archive denies any remaining allegations in this paragraph.
118.

To the extent allegations in this paragraph state legal conclusions, they do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations. The Internet Archive denies the remaining allegations in this paragraph.
C.

Defendant’s Infringement Causes Harm to Publishers

119.

Denied.

120.

Denied.

121.

Denied.

122.

Denied.

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123.

Denied.

124.

Denied.

125.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them.
126.

Denied.

127.

Denied.
CLAIMS FOR RELIEF
FIRST CAUSE OF ACTION
Direct Copyright Infringement (17 U.S.C. § 101 et seq.)

128.

The Internet Archive repeats and realleges each and every response to Plaintiffs’

foregoing allegations.
129.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.
130.

The Internet Archive lacks sufficient knowledge or information to admit or deny

the allegations in this paragraph and on that basis denies them. To the extent allegations in this
paragraph state legal conclusions, they do not require a response. To the extent a response is
required, the Internet Archive denies the allegations.
131.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.
132.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.
133.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.

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134.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.
135.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.
136.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.
137.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.
SECOND CAUSE OF ACTION
Secondary Copyright Infringement (17 U.S.C. § 101 et seq.)
138.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.
139.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.
140.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.
141.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.
142.

The allegations in this paragraph state legal conclusions and therefore do not

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require a response. To the extent a response is required, the Internet Archive denies the
allegations.
143.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.
144.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.
145.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.
146.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.
147.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.
148.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.
149.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.
150.

The allegations in this paragraph state legal conclusions and therefore do not

require a response. To the extent a response is required, the Internet Archive denies the
allegations.

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PRAYER FOR RELIEF
In response to the Prayer for Relief, the Internet Archive denies that Plaintiffs are entitled
to the requested relief, or to any relief whatsoever.
AFFIRMATIVE DEFENSES
In further answer to the allegations made by Plaintiffs in the Complaint, the Internet
Archive asserts the following affirmative defenses. The Internet Archive does not concede that it
has the burden of proof on the defenses listed below.
First Affirmative Defense
(Failure to State a Claim)
The Complaint fails to state a claim on which relief can be granted.
Second Affirmative Defense
(Fair Use)
To the extent there was any use of Plaintiffs’ copyrighted materials, such use is protected
by the Fair Use Doctrine, including under 17 U.S.C. § 107.
Third Affirmative Defense
(First Sale Doctrine)
Plaintiffs’ claims are barred in whole or in part by the First Sale Doctrine, including
under 17 U.S.C. § 109.
Fourth Affirmative Defense
(Safe Harbor)
To the extent they arise by reason of the storage at the direction of a user of allegedly
infringing material, Plaintiffs’ claims are barred in whole or in part by 17 U.S.C. § 512(c).
Fifth Affirmative Defense
(No Statutory Damages)
Pursuant to 17 U.S.C. § 504(c)(2), Plaintiffs are not entitled to statutory damages, and
statutory damages must be remitted, because the Internet Archive believed and had reasonable

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grounds for believing that the accused use of the copyrighted work was a fair use, including
under section 107, and the Internet Archive is an institution, library, or archives accused of
having infringed by reproducing works in copies or phonorecords.
Sixth Affirmative Defense
(Statutes of Limitations)
Plaintiffs’ remedies are barred at least in part by the applicable statutes of limitations
under 17 U.S.C. § 507(b).
Seventh Affirmative Defense
(Laches)
Plaintiffs’ claims are barred, in whole or in part, by the doctrine of laches.

PRAYER FOR RELIEF
WHEREFORE, the Internet Archive respectfully prays that the Court:
1.

Deny Plaintiffs’ prayer for relief in it its entirety;

2.

Dismiss the Complaint with prejudice and enter judgment in favor of IA;

3.

Award the Internet Archive its attorneys’ fees and costs incurred in this action,
and any other amounts recoverable under law; and

4.

Award the Internet Archive such other and further relief as the Court deems just
and equitable.

The Internet Archive hereby demands a trial by jury in this action.

Dated: July 28, 2020

DURIE TANGRI LLP
By:

/s/ Joseph C. Gratz
JOSEPH C. GRATZ (Pro Hac Vice)
JESSICA E. LANIER (Pro Hac Vice)
ADITYA V. KAMDAR (Pro Hac Vice)

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217 Leidesdorff Street
San Francisco, CA 94111
(415) 362-6666
jgratz@durietangri.com
jlanier@durietangri.com
akamdar@durietangri.com
ALLYSON R. BENNETT (Pro Hac Vice)
953 East 3rd Street
Los Angeles, CA 90013
(213) 992-4499
abennett@durietangri.com
CORYNNE MCSHERRY (Pro Hac Vice)
KIT WALSH (Pro Hac Vice)
CARA GAGLIANO (Pro Hac Vice)
ELECTRONIC FRONTIER FOUNDATION
815 Eddy Street
San Francisco, CA 94109
(415) 436-9333
corynne@eff.org
kit@eff.org
cara@eff.org
Attorneys for Defendant INTERNET ARCHIVE

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 Case 1:20-cv-04160-JGK Document 33 Filed 07/28/20 Page 28 of 28

CERTIFICATE OF SERVICE
I hereby certify that on July 28, 2020 the within document was filed with the Clerk of the
Court using CM/ECF which will send notification of such filing to the attorneys of record in this
case.
/s/ Joseph C. Gratz
JOSEPH C. GRATZ

27