Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 1 of 53
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`20 Civ. _____________
`ECF Case
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`COMPLAINT
`TRIAL BY JURY DEMANDED
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`Plaintiffs,
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`-against-
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`HACHETTE BOOK GROUP, INC.,
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`HARPERCOLLINS PUBLISHERS LLC, JOHN
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`WILEY & SONS, INC., and PENGUIN RANDOM
`HOUSE LLC,
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`INTERNET ARCHIVE and DOES 1 through 5,
`inclusive,
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`Defendants.
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`x
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`Plaintiffs Hachette Book Group, Inc. (“Hachette”), HarperCollins Publishers LLC
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`(“HarperCollins”), John Wiley & Sons, Inc. (“Wiley”), and Penguin Random House LLC
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`(“Penguin Random House”), by and through their attorneys Davis Wright Tremaine LLP and
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`Oppenheim + Zebrak, LLP, for their Complaint, hereby allege against Defendant Internet
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`Archive (“IA” or “Defendant”) and Does 1 through 5 as follows:
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`NATURE OF THE ACTION
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`1.
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`Plaintiffs Hachette, HarperCollins, Penguin Random House, and Wiley
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`(collectively, “Plaintiffs” or “Publishers”) bring this copyright infringement action against IA in
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`connection with website operations it markets to the public as “Open Library” and/or “National
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`Emergency Library.” Plaintiffs are four of the world’s preeminent publishing houses.
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`Collectively, they publish some of the most successful and leading authors in the world,
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`investing in a wide range of fiction and nonfiction books for the benefit of readers everywhere.
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`All of the Plaintiffs are member companies of the Association of American Publishers, the
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`mission of which is to be the voice of American publishing on matters of law and public policy.
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`2.
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`Defendant IA is engaged in willful mass copyright infringement. Without any
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`license or any payment to authors or publishers, IA scans print books, uploads these illegally
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`scanned books to its servers, and distributes verbatim digital copies of the books in whole via
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`public-facing websites. With just a few clicks, any Internet-connected user can download
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`complete digital copies of in-copyright books from Defendant.
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`3.
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`The scale of IA’s scheme is astonishing: At its “Open Library,” located at
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`www.openlibrary.org and www.archive.org (together, the “Website”), IA currently distributes
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`digital scanned copies of over 1.3 million books. And its stated goal is to do so for millions
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`more, essentially distributing free digital copies of every book ever written. Despite the “Open
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`Library” moniker, IA’s actions grossly exceed legitimate library services, do violence to the
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`Copyright Act, and constitute willful digital piracy on an industrial scale. Consistent with the
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`deplorable nature of piracy, IA’s infringement is intentional and systematic: it produces mirror-
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`image copies of millions of unaltered in-copyright works for which it has no rights and
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`distributes them in their entirety for reading purposes to the public for free, including
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`voluminous numbers of books that are currently commercially available.
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`4.
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`Books have long been essential to our society. Fiction and non-fiction alike, they
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`transport us to new worlds, broaden our horizons, provide us with perspective, reflect the ever-
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`growing knowledge of humanity in every field, spark our imaginations and deepen our
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`understanding of the world. Yet, books are not self-generating. They are the product of training
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`and study, talent and grit, perseverance and creativity, investment and risk, and untold hours of
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`work.
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`5.
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`The publishing ecosystem not only depends upon copyright law, it is historically
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`intertwined with the founding of the United States. In 1787, the Framers adopted the Copyright
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`Clause of the Constitution, explicitly authorizing Congress “[t]o promote the Progress of Science
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`and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to
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`their respective Writings and Discoveries.” U.S. Const., Art. I, §8, cl. 8. In 1790, the First
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`Congress enacted the first Copyright Act, focused on incentivizing both the creation and legal
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`dissemination of books, maps, and charts. Congresses ever since have carefully balanced
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`copyright amendments to advance the public good and for more than 200 years have prescribed
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`to authors a suite of enforceable exclusive rights to their writings—which publishers, in turn,
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`encourage, invest in, license, and distribute to readers through bookstores, libraries, and a
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`multitude of e-commerce platforms. In this process of publishing books that educate, entertain,
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`and inspire the public, publishers rely not only on the exclusive rights that are their lifeblood, but
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`on the expectation that Congress has carefully considered and appropriately tailored any
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`limitations and exceptions to said rights.
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`6.
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`IA not only acts entirely outside any legal framework, it does so flagrantly and
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`fraudulently. And it proceeds despite actual notice that its actions constitute infringement. For
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`the avoidance of doubt, this lawsuit is not about the occasional transmission of a title under
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`appropriately limited circumstances, nor about anything permissioned or in the public domain.
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`On the contrary, it is about IA’s purposeful collection of truckloads of in-copyright books to
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`scan, reproduce, and then distribute digital bootleg versions online. IA’s Website includes books
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`of every stripe—from bestsellers to scholarly monographs, from entertaining thrillers and
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`romances to literary fiction, from self-help books to biographies, from children’s books to adult
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`books. IA often suggests that the Website is limited to twentieth-century books, but this is
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`neither accurate nor a defense. IA scans, uploads, and distributes huge numbers of in-copyright
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`books published in both the twentieth and twenty-first centuries, including many books
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`published within just the past few years. IA’s unauthorized copying and distribution of
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`Plaintiffs’ works include titles that the Publishers are currently selling commercially and
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`currently providing to libraries in ebook form, making Defendant’s business a direct substitute
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`for established markets. Free is an insurmountable competitor.
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`7.
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`Publishers have long supported public libraries, recognizing the significant
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`benefits to the public of ready access to books and other publications. This partnership turns
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`upon a well-developed and longstanding library market, through which public libraries buy print
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`books and license ebooks (or agree to terms of sale for ebooks) from publishers, usually via book
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`wholesalers or library ebook aggregators. IA’s activities are nothing like those of public
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`libraries, but rather the kind of quintessential infringement that the Copyright Act directly
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`prohibits. Moreover, while Defendant promotes its non-profit status, it is in fact a highly
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`commercial enterprise with millions of dollars of annual revenues, including financial schemes
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`that provide funding for IA’s infringing activities. By branding itself with the name “Open
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`Library,” it thus badly misleads the public and boldly misappropriates the goodwill that libraries
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`enjoy and have legitimately earned.
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`8.
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`IA defends its willful mass infringement by asserting an invented theory called
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`“Controlled Digital Lending” (“CDL”)—the rules of which have been concocted from whole
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`cloth and continue to get worse. For example, at first, under this theory IA claimed to limit the
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`number of scanned copies of a title available for free download at any one time to the number of
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`print books of that title in its collection—though no provision under copyright law offers a
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`colorable defense to the systematic copying and distribution of digital book files simply because
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`the actor collects corresponding physical copies. Then, in the face of the COVID-19 pandemic,
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`IA opportunistically seized upon the global health crisis to further enlarge its cause, announcing
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`with great fanfare that it would remove these already deficient limitations that were purportedly
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`in place. Today, IA offers an enormous universe of scanned books to an unlimited number of
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`individuals simultaneously in its “National Emergency Library.” IA’s blatant, willful
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`infringement is all the more egregious for its timing, which comes at the very moment that many
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`authors, publishers, and independent bookstores, not to mention libraries, are both struggling to
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`survive amidst economic uncertainty and planning deliberatively for future, changing markets.
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`9.
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`Under whatever guise IA attempts to frame its massive infringement—whether
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`adopting the invented CDL theory or filling the self-appointed role as “National Emergency
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`Library”—its actions find no support in the Copyright Act. IA’s defenses of its actions—both
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`before and after the onset of the COVID-19 crisis—are baseless. First, while IA claims to serve
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`an educational purpose, education has long been a primary mission and market of publishers. It
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`is authors and publishers who create the books of scholarship and literature for educators,
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`students, and other readers; IA creates nothing. IA plays no role in the hard work of researching,
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`writing, or publishing the works or, for that matter, in creating or sustaining the overall
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`publishing ecosystem and its distinct partnerships and markets. Nor does IA contribute to the
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`underlying scholarship through commentary or criticism. Moreover, IA’s massive book
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`digitization business has no new purpose that is fundamentally different than that of the
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`Publishers: both distribute entire books for reading. In short, Defendant merely exploits the
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`investments that publishers have made in their books, and it does so through a business model
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`that is designed to free-ride on the work of others. Defendant pays for none of the expenses that
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`go into publishing a book and is nothing more than a mass copier and distributor of bootleg
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`works. In so doing, IA undermines the balance and promise of copyright law by usurping the
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`Publishers’ ability to license and sell the books that they have lawfully produced on behalf of
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`authors and for the benefit of readers.
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`10.
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` IA’s self-serving assertion and promotion of “Controlled Digital Lending” as
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`both an actual legal doctrine and a justification for its infringement affronts the most basic
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`realities of the law and the markets it propels. As a matter of markets, IA’s one-to-one
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`conflation of print and ebooks is fundamentally flawed. Digital books are inherently different
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`from physical books. They can fly around the world in a second; they do not degrade over time
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`as physical books do; and they require devices to read them. For these reasons, the Publishers
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`have established independent and distinct distribution models for ebooks, including a market for
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`lending ebooks through libraries, which are governed by different terms and expectations than
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`print books. IA’s end-run around these differences and restrictions is aggressive and unlawful.
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`In short, all of the reasons why IA has scanned print books to create digital files are the very
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`same reasons why authors and publishers provide digital books under different terms than print
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`books—as they are entitled to do under the Copyright Act.
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`11.
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` No concept of fair use supports the systematic mass copying or distribution of
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`entire books for the purpose of mass reading, or put another way, for the purpose of providing to
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`readers the very thing that publishers and authors provide in the first place through lawful and
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`established channels. IA does not add something new to the Plaintiffs’ books, with a different
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`purpose or character; thus, it cannot even begin to make the all-important showing that its use of
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`the works is transformative. Separately, Section 109 of the Copyright Act is clear that, pursuant
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`to the doctrine of first sale, the owner of a lawfully acquired print book may dispose only of
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`her/his particular print copy. One who makes and distributes reproductions of that physical
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`copy—such as IA’s low quality scans—is well outside the bounds of the law.
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`12.
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`Nor do IA’s efforts to brand itself as a library somehow imbue it with any right to
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`digitize and distribute unauthorized digital copies of books. Libraries are trusted institutions that
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`serve the communities that fund them. When Congress contemplated the making of digital
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`copies by libraries under 17 U.S.C. §108, it engaged all relevant stakeholders and created a set of
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`rational, targeted exceptions to infringement liability—exceptions that have no application to
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`IA’s actions. As the Copyright Office observed in a relevant public study titled “Legal Issues in
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`Mass Digitization” (October 2011), “The Section 108 exception does not contemplate mass
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`digitization.”
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`13.
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`The creation, publication, and distribution of books is an ecosystem. IA
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`disaggregates itself from this ecosystem, ignores the law, and asserts that its goal of providing
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`free copies of books somehow excuses it from any responsibility to those who have created the
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`works and hold exclusive rights under the Copyright Act. Its goal of creating digital copies of
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`books and providing them to whomever wants to download them reflects a profound
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`misunderstanding of the costs of creating books, a profound lack of respect for the many
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`contributors involved in the publication process, and a profound disregard of the boundaries and
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`balance of core copyright principles. IA does not seek to “free knowledge”; it seeks to destroy
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`the carefully calibrated ecosystem that makes books possible in the first place—and to
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`undermine the copyright law that stands in its way.
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`14.
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`In sum, IA’s massive taking violates the Plaintiffs’ exclusive rights under 17
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`U.S.C §106. Plaintiffs bring this action to halt IA’s assault on their rights.
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`THE PARTIES
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`Plaintiffs
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`Plaintiffs are four of the leading book publishers in the United States. Working
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`A.
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`15.
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`closely with their authors, Plaintiffs source, develop, edit, publish, market, and distribute tens of
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`thousands of books per year, across the full spectrum of genres and topics.
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`16.
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`Plaintiff Hachette is a publishing company, organized under the laws of
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`Delaware, with its principal place of business at 1290 Sixth Avenue, New York, NY 10104.
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`With a history stretching back to 1837, Hachette works with bestselling authors who have been
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`published all over the world. Hachette books and authors have won Pulitzer Prizes, National
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`Book Awards, Newbery Medals, Caldecott Medals, and Nobel Prizes. Its many publishing
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`imprints include prominent brands such as Little, Brown and Company, Little, Brown Books for
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`Young Readers, Grand Central Publishing, Basic Books, Public Affairs, Orbit, FaithWords and
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`Center Street.
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`17.
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`Plaintiff HarperCollins is a publishing company, organized under the laws of
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`Delaware, with its principal place of business at 195 Broadway, New York, NY 10007.
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`HarperCollins has more than 200 years of history in the book publishing industry and the
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`company now operates more than 120 imprints and brands in 17 countries worldwide. Each
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`year, HarperCollins publishes approximately 10,000 new books in more than a dozen languages
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`and boasts a catalogue of more than 200,000 titles in print and digital formats. Working across a
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`wide range of genres, authors published by HarperCollins have won the Nobel Prize, the Pulitzer
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`Prize, the National Book Award, the Newbery and Caldecott Medals, and the Man Booker Prize,
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`among other honors.
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`18.
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`Plaintiff Penguin Random House is a publishing company, organized under the
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`laws of Delaware, with its principal place of business at 1745 Broadway, New York, NY 10019.
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`Penguin Random House can trace its history back to the mid-nineteenth century and one of its
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`progenitors, Random House, published the first authorized edition of James Joyce’s Ulysses in
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`the English-speaking world, among other landmark titles. The portfolio operated by Penguin
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`Random House has grown to encompass nearly 275 independent imprints and brands across five
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`continents. Penguin Random House publishes 15,000 new titles per year—catering to readers of
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`all ages and at every stage of life—and sells close to 800 million print books, audiobooks, and
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`ebooks annually. It has published hundreds of the most widely read authors in the world.
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`19.
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`Plaintiff Wiley is a publishing company, organized under the laws of New York,
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`with its principal place of business at 111 River Street, Hoboken, NJ 07030. Founded in 1807,
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`Wiley has over 200 years of experience publishing scientific, professional, and education books
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`and journals in print and digital formats. Wiley has published works by over 450 Nobel
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`Laureates. It publishes over 2,000 new books each year and currently offers over 120,000 titles.
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`20.
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`Plaintiffs are the copyright owners or owners of exclusive rights under copyright
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`in, inter alia, each of the works listed in Exhibit A (the “Works”), on which they bring suit here.
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`Exhibit A is an illustrative, non-exhaustive list of in-copyright works that Defendant(s) infringed
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`through the activities complained of herein. Upon information and belief, all of the Works have
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`been scanned and uploaded to the Website by IA. All of these titles are commercially available.
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`21.
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`The Works represent a cross-section of the exceptional books that are made
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`possible by a functioning publishing ecosystem, from perennial classic novels to more recent
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`highly acclaimed works of non-fiction and everything in between. Some of the greatest works of
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`fiction ever published find their place among the Works in suit, including The Lord of the Flies
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`by William Golding (winner of the 1983 Nobel Prize for Literature), Song of Solomon by Toni
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`Morrison (winner of the 1993 Nobel Prize for Literature), and Their Eyes Were Watching God by
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`Zora Neal Hurston. The Works also include New York Times bestselling authors like John
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`Grisham and James Patterson and equally popular thrillers like Gone Girl by Gillian Flynn as
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`well as hard-hitting contemporary novels, such as The Miseducation of Cameron Post by Emily
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`M. Danforth and The Road by Cormac McCarthy, which won the 2007 Pulitzer Prize for Fiction.
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`Children’s books are well-represented, from old favorites like Little House on the Prairie and
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`The Lion, The Witch and the Wardrobe to more recent treasures, like the works of Lemony
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`Snicket and Escape from Mr. Lemoncello’s Library. Books for young adults are also included,
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`like Scat by Carl Hiaasen and The House on Mango Street by Sandra Cisneros.
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`22.
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`No less important than the works of fiction are the outstanding examples of non-
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`fiction books represented by the Works. The Works contain multiple titles from the ever-popular
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`“For Dummies” series, which have taught intrepid readers the basics of everything from oil
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`painting to comparative religion. For those looking for success in business, the Works include
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`books by the management guru Patrick Lencioni and books on investment by billionaire analyst
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`Ken Fisher. Also included are Malcolm Gladwell’s highly influential works on psychology and
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`behavioral economics, a work by Nobel Peace Prize winner Elie Wiesel, and the well-loved A
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`Short History of Nearly Everything by Bill Bryson.
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`B.
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`23.
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`Defendant
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`Defendant IA is a 501(c)(3) corporation, organized under the laws of California,
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`with its principal place of business at 300 Funston Avenue, San Francisco, CA 94118.
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`24.
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`IA is registered with the New York Department of State to transact business and
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`accept service of process within the State of New York. IA currently transacts business within
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`the State of New York and this District by, inter alia, distributing digital copies of books (and
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`other content) to New York residents over the Internet, by providing New York residents with
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`services-for-a-fee related to the digitization of books, and by soliciting and accepting
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`contributions from New York residents to further its digitization and distribution of books. In
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`addition, certain Works were copied and digitized by IA in New York.
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`25.
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`IA harms the Publishers in this District because IA has copied and uploaded the
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`Publishers’ copyrighted books to its Website, including each of the Works in suit, without
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`permission, and IA currently distributes copies to users of the Website, in New York or
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`elsewhere. Upon information and belief, many of the acts of copyright infringement committed
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`by IA set forth in this Complaint occurred within this State and District—including illegal
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`reproductions, distributions, public displays, and/or public performances. Both the Publishers’
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`economic and author relations damages are primarily felt in this State, where three of the
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`Plaintiffs have their principal place of business and the fourth (Wiley) is incorporated. IA knew
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`it would cause injury to Publishers in this State and District, or it should have reasonably
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`expected injury to occur here. Indeed, IA acknowledges that in the last thirty days over 151,000
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`views on its site came from New York State, making New York the jurisdiction with the third
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`highest IA views in the world. See Internet Archive, Books to Borrow,
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`https://archive.org/details/inlibrary?tab=about (last accessed May 29, 2020).
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`26.
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`IA derives substantial revenue from interstate and international commerce.
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`According to public filings, IA has earned over $100 million in the last ten years from a national
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`network of supporters, at least some of whom are based in New York, and from the services it
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`sells to clients in New York and all over the United States, including industrial-scale book
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`scanning services.
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`27.
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` Defendants Doe 1 through Doe 5 are certain individuals or entities whose true
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`identities are not currently known to Plaintiffs. Defendants Doe 1 through Doe 5, who are sued
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`under fictitious names, are those who also may be responsible for the unlawful activities
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`complained of herein. (Doe 1 through Doe 5 do not include any public, university, or academic
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`libraries.) Once Plaintiffs ascertain their identities, Plaintiffs will seek leave of the Court to
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`amend the Complaint to include Defendants Doe 1 through Doe 5 as named defendants.
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`JURISDICTION AND VENUE
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`28.
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`This Court has subject matter jurisdiction over this action, which arises under the
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`Copyright Act of 1976, 17 U.S.C. §§ 101, et seq., pursuant to 28 U.S.C. §§ 1331 and 1338.
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`29.
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`This Court has personal jurisdiction over Defendant pursuant to CPLR 302
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`because, inter alia, Defendant transacts business within the State of New York and supplies
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`services in this State; because Defendant has committed tortious acts within the State of New
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`York, including the direct and indirect infringement of Plaintiffs’ exclusive rights in copyrighted
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`books; and, because Defendant has caused injury to Plaintiffs in this State by allowing Internet
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`users to download and view Plaintiffs’ Works for free on the infringing Website and knew or
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`reasonably should have known its acts would have consequences in this State, all while deriving
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`millions of dollars in revenue from interstate commerce,.
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`30.
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`This Court independently has personal jurisdiction over Defendant pursuant to
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`CPLR 301 because IA is registered to do business in the State of New York and has pervasive
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`corporate ties to the State that are sufficient to justify the imposition of general jurisdiction here.
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`31.
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`Venue is proper in this District under 28 U.S.C. §§ 1391 and 1400.
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`FACTUAL BACKGROUND
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`A.
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`The Book Publishing Ecosystem
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`i.
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`Publishers and Authors Rely on Copyright Law to Create Functioning
`Markets for Books
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`32.
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`Books are a cornerstone of our culture and system of democratic self-government
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`and play a critical role in education. Because books require so much time and effort to write and
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`develop, they offer the promise of high-quality expression, important insights, and long-term
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`value to society. But the qualities that make books among the most reliable conduits of learning
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`and most intensive sources of creative expression come at a high cost. Publishers are largely
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`responsible for bearing these costs and, in doing so, act as leading defenders of free speech,
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`promoters of literacy and scientific knowledge, and creators of the stories people thrive on.
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`33.
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`Authors devote great effort and care in researching and writing books, a skill
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`which requires training and imagination. It is not unusual for an author to spend years writing a
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`single book of fiction or nonfiction. Many authors, from the most celebrated New York Times
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`bestsellers to new talents still making a name for themselves, write books for a living and rely on
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`income from writing as their primary means of support. Writing is an expert craft, but one that is
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`commercially unpredictable. Authors who find success with one book may benefit from
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`renewed interest in and sales of their previous titles. Copyright law supports this long potential
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`by ensuring a lengthy term of protection, as well as licensing and sale possibilities.
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`34.
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`In the United States, publishing dates back to the dawn of our democracy. Over
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`hundreds of years, book publishers like Plaintiffs have invested in the talent of authors and
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`developed unparalleled expertise in the art of publishing high-quality books by providing a
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`variety of vital services including editing, marketing, and distribution. Publishers expend the
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`necessary resources, financial and otherwise, in reliance on the enforceable exclusive rights
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`afforded by copyright law that make recouping expenditures possible. The steadfastness of the
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`law, in turn, promotes new technologies and new business models and distribution mechanisms
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`by which to reach new audiences, no matter the circumstances. Indeed, at a time of crisis such as
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`we have now with COVID-19, the continued viability of publishing is more important than ever
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`to society.
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`35.
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`The founders of this nation wrote a copyright clause into the Constitution to
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`empower Congress to incentivize authors to create and publish their work, yielding a robust
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`history of Copyright Acts that date to 1790 and have always squarely addressed the protection of
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`books. The Copyright Act of 1976—which enacts the constitutional imperative into law and
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`balances the rights of readers with the rights of copyright owners—enables authors to profit from
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`writing books by granting them the legal right to control the reproduction, distribution, public
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`display, and public performance of their work, and to create derivative works, among other
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`exclusive rights. Each of these rights is implicated in this action.
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`36.
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`In a related fashion, copyright law gives authors and publishers, as rightsholders,
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`exclusive control over how to publish their content in order to allow book markets to develop
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`and thrive. This includes empowering publishers to tailor their means of distribution and terms
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`of sale or license depending on the format or medium in which a particular title is released.
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`These carefully calibrated markets are precisely the markets that IA seeks to disrupt and destroy
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`by arrogating to itself the right to engage in bulk digitization of the Publishers’ in-copyright
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`books without a license and without any compensation, and by distributing the resulting illegal
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`bootleg copies for free over the Internet to individuals worldwide.
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`37.
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`Over hundreds of years publishers have found ways to maintain viable markets
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`for books even as revolutions in publishing have driven changes in format, from leather-bound
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`hardcover books to paperbacks to the paperless ebooks we read on digital devices. The ability of
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`publishers to develop a diversity of new channels as technology evolves is crucial to meeting the
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`high cost of publishing.
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`38.
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`This includes the market for both new and “backlist” books. Book publishers
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`derive substantial revenue from backlist books, which range from venerable classics like The
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`Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 15 of 53
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`Bell Jar by Sylvia Plath or Winds of War by Herman Wouk to works written only a few years
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`ago, including bestselling works such as Eat, Pray, Love by Elizabeth Gilbert and
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`Commonwealth by Ann Patchett, all of which are Works in suit. Moreover, a great deal of the
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`most successful children’s books, including many of the Works, are backlist books.
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`ii.
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`39.
`
`The Development of Functioning Markets for Ebooks
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`The rise of a commercial market for ebooks provides an example of publishers’
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`adapting to new technologies to create new and diverse channels to meet the demands of readers.
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`Since the early 2000s, Plaintiffs and other publishers have offered readers digital versions of
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`their books, which can be read on portable electronic devices such as the Kindle, Nook, iPad, and
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`other smart devices. Since that time, ebooks have grown to become a major source of revenue
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`for authors and publishers. Publishers have invested heavily to expand the ebook market,
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`including by publishing their backlist titles in ebook form. They have devoted considerable time,
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`money, and professional expertise to create high-quality ebooks to deliver to readers. Authors
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`rely on publishers to present their works well to readers.
`
`40.
`
`The fundamental differences between print and digital formats require publishers
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`to market print books and ebooks in different ways. Not only are the cost structures and
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`distribution systems different for these two formats, but ebooks are digital files that can pose
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`significant security concerns. Without protective measures, digital files can be copied perfectly,
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`instantaneously and in practically infinite quantity at virtually no cost, and distributed all over
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`the world in a split second.
`
`41.
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`Because of these material differences in format, publishers do not distribute
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`ebooks the same way that they sell traditional paper books. Like other copyright sectors that
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`license education technology or entertainment software, publishers either license ebooks to
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`consumers or sell them pursuant to special agreements or terms established by each publisher
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`Case 1:20-cv-04160 Document 1 Filed 06/01/20 Page 16 of 53
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`and the platforms on which the ebooks may be read. By contrast, they sell copies of print books
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`without any restrictions.
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`42. When an ebook customer obtains access to the title in a digital format, there are
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`set terms that determine what the user can or cannot do with the underlying file. Publishers also
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`use digital rights management technology (“DRM”) to restrict the use and further distribution of
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`ebook files. The commercial ebook market would not be viable if publishers lacked the ability to
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`place any control over the means of distribution of ebooks or to prevent unlimited copying or
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`distribution of the files.
`
`43.
`
`Copyright law recognizes and enforces the right of copyright owners to control
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`their works through DRM technology. In 1998, Congress enacted the Digital Millennium
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`Copyright Act (“DMCA”), which made it illegal to circumvent DRM technology. The rights
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`that enable publishers to control the publication of ebooks ultimately benefit readers because
`
`they enable publishers to provide their ebooks to a variety of channels and at a variety o