Hachette Book Group, Inc., et al. v. Internet Archive, et al.

Analysis Group was retained by Davis Wright Tremaine and Oppenheim + Zebrak on behalf of HarperCollins Publishers, Penguin Random House, John Wiley & Sons, and Hachette Book Group, the plaintiffs in a copyright infringement litigation brought against Internet Archive. The plaintiffs claimed that Internet Archive, which provides a free, publicly available online library of digitized materials, did not secure licenses nor obtain permission to digitize or distribute the materials in its collection, including approximately 2 million e-books in copyright. The case was originally decided following a summary judgment motion in the US District Court for the Southern District of New York, where Analysis Group academic affiliate Jeffrey Prince opined on whether Internet Archive’s conduct caused harm in the print and e-book market under the fourth factor of the fair use doctrine and rebutted evidence presented by Internet Archive’s experts.

An Analysis Group team led by Senior Advisor David Sosa and Manager Ilona Mostipan supported Professor Prince, who filed a report, submitted a declaration, and offered deposition testimony. Professor Prince opined that Internet Archive had caused and was continuing to cause economic harm to the plaintiffs through its failure to pay a fee for distribution of materials in its collection. He stated that Internet Archive’s conduct likely displaces the plaintiffs’ sales of e-books and print books to libraries and consumers. Furthermore, Professor Prince opined that such conduct would cause considerable harm to market participants, including consumers and authors, if it became more widespread.

After a US district judge granted summary judgment to the plaintiffs, the US Court of Appeals for the Second Circuit considered Internet Archive’s argument that its practices were shielded by the fair use doctrine. A Second Circuit panel affirmed the summary judgment win for the plaintiffs, rejecting Internet Archive’s argument. The judges agreed with the plaintiffs’ assessment of market harm and cited Professor Prince’s critiques of Internet Archive’s experts.