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Publishers’ reply brief in Hachette v. Internet Archive: First Impressions

Dave Hansen and Kyle K. Courtney jointly authored this post. They are also the authors of a White Paper on Controlled Digital Lending of Library Books. We are not, as the Publishers claim in their brief on page 13, a “cadre of boosters.” We wrote the paper independently as part of our combined decades of work on libraries access to knowledge. [On March 15, 2024] the publishers (Hachette, Harper Collins, John Wiley, and Penguin Random House) filed their reply brief on appeal in their  long-running lawsuit against Internet Archive, which challenges (among other things) the practice of controlled digital lending. For the months after the decision, we had been observing all the hot takes, cheers, jeers, and awkward declarations about the case, the Internet Archive itself, and Controlled Digital Lending (CDL) This post is not part of that fanfare. Here, we want to identify a few critical issues that the publishers focus on in their brief, including some questionable fair use analysis that they repeat from the district court below. Much of the brief is framed in heated rhetoric that may cause alarm, but much like publishers’ announcements about interlibrary loan, e-reserves, or document delivery, we believe controlled digital lending is here to stay, regardless of the lower court’s poor copyright analysis and current publisher’s brief…”

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