`
`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,
`
`v.
`INTERNET ARCHIVE and DOES 1
`through 5, inclusive,
`
`
`Case No. 1:20-CV-04160-JGK
`
`
`
`JURY TRIAL DEMANDED
`
`
`Defendants.
`
`
`DEFENDANT INTERNET ARCHIVE’S ANSWER AND AFFIRMATIVE DEFENSES
`TO THE COMPLAINT
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case 1:20-cv-04160-JGK Document 33 Filed 07/28/20 Page 2 of 28
`
`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,
`
`
`
`
`
`1
`
`
`
`
`
`Case 1:20-cv-04160-JGK Document 33 Filed 07/28/20 Page 3 of 28
`
`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
`
`
`
`
`
`2
`
`
`
`
`
`Case 1:20-cv-04160-JGK Document 33 Filed 07/28/20 Page 4 of 28
`
`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.
`
`
`
`
`
`
`
`
`3
`
`
`
`
`
`Case 1:20-cv-04160-JGK Document 33 Filed 07/28/20 Page 5 of 28
`
`NATURE OF THE ACTION1
`The Internet Archive admits that the Plaintiffs allege copyright infringement, that
`1.
`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.
`Denied.
`2.
`The Internet Archive admits that more than 1.3 million books are available on
`3.
`archive.org for one patron to borrow at a time. The Internet Archive denies the remaining
`allegations of this paragraph.
`Admitted.
`4.
`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.
`The Internet Archive admits that books from a variety of genres are available to
`6.
`patrons for borrowing on archive.org. The Internet Archive denies the remaining allegations of
`this paragraph.
`Denied.
`7.
`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.
`
`
`
`
`
`4
`
`
`
`
`
`Case 1:20-cv-04160-JGK Document 33 Filed 07/28/20 Page 6 of 28
`
`Denied.
`11.
`The Internet Archive admits that libraries are trusted institutions that serve
`12.
`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.
`Denied.
`13.
`14.
`Denied.
`
`THE PARTIES
`
`Plaintiffs
`A.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`15.
`the allegations in this paragraph and on that basis denies them.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`16.
`the allegations in this paragraph and on that basis denies them.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`17.
`the allegations in this paragraph and on that basis denies them.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`18.
`the allegations in this paragraph and on that basis denies them.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`19.
`the allegations in this paragraph and on that basis denies them.
`The Internet Archive admits that the works identified in Exhibit A to the
`20.
`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.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`21.
`
`
`
`
`
`5
`
`
`
`
`
`Case 1:20-cv-04160-JGK Document 33 Filed 07/28/20 Page 7 of 28
`
`the allegations in this paragraph and on that basis denies them.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`22.
`the allegations in this paragraph and on that basis denies them.
`Defendant
`B.
`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.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`25.
`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.
`The Internet Archive admits that it provides some services to other nonprofit
`26.
`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.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`27.
`the allegations in this paragraph and on that basis denies them.
`JURISDICTION AND VENUE
`The Internet Archive does not contest that this Court may exert subject matter
`28.
`jurisdiction over Plaintiffs’ claims. The remaining allegations in this paragraph are legal
`
`
`
`
`
`6
`
`
`
`
`
`Case 1:20-cv-04160-JGK Document 33 Filed 07/28/20 Page 8 of 28
`
`conclusions to which no response is required. To the extent any response is required, the Internet
`Archive denies the allegations in this paragraph.
`For the purposes of this action only, the Internet Archive does not contest it is
`29.
`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.
`For the purposes of this action only, the Internet Archive does not contest it is
`30.
`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.
`For this purposes of this action only, the Internet Archive admits that venue is
`31.
`proper in this District.
`
`A.
`
`FACTUAL BACKGROUND
`The Book Publishing Ecosystem
`Publishers and Authors Rely on Copyright Law to Create
`i.
`Functioning Markets for Books
`The Internet Archive admits that books are a cornerstone of our culture and
`32.
`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.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`33.
`the allegations in this paragraph and on that basis denies them.
`Internet Archive lacks sufficient knowledge or information to admit or deny the
`34.
`
`
`
`
`
`7
`
`
`
`
`
`Case 1:20-cv-04160-JGK Document 33 Filed 07/28/20 Page 9 of 28
`
`allegations in this paragraph and on that basis denies them.
`The Internet Archive admits that the first Copyright Act was passed in 1790, that
`35.
`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.
`Denied.
`36.
`37.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`the allegations in this paragraph and on that basis denies them.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`38.
`the allegations in this paragraph and on that basis denies them.
`The Development of Functioning Markets for Ebooks
`ii.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`39.
`the remaining allegations in this paragraph and on that basis denies them.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`40.
`the remaining allegations in this paragraph and on that basis denies them.
`The Internet Archive admits that publishers sell copies of print books without any
`41.
`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.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`42.
`the remaining allegations in this paragraph and on that basis denies them.
`The Internet Archive admits that Congress passed the DMCA in 1998. The
`43.
`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.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`44.
`
`
`
`
`
`8
`
`
`
`
`
`Case 1:20-cv-04160-JGK Document 33 Filed 07/28/20 Page 10 of 28
`
`the remaining allegations in this paragraph and on that basis denies them.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`45.
`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.
`The Established Market Equilibrium Between Authors, Publishers,
`iii.
`and Libraries
`The Internet Archive admits that public libraries are among the most cherished
`46.
`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.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`47.
`the allegations in this paragraph and on that basis denies them.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`48.
`the allegations in this paragraph and on that basis denies them.
`Plaintiffs and Libraries Reacted Rapidly to Ensure Library Patrons
`iv.
`Have Access to Books During the COVID-19 Lockdown
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`49.
`the allegations in this paragraph and on that basis denies them.
`Denied.
`50.
`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.
`Internet Archive Unlawfully Disrupts the Book Publishing Ecosystem by
`B.
`Infringing Copyright on an Industrial Scale
`Denied.
`Internet Archive
`i.
`The Internet Archive admits that Brewster Kahle founded the Internet Archive in
`
`52.
`
`53.
`
`
`
`
`
`9
`
`
`
`
`
`Case 1:20-cv-04160-JGK Document 33 Filed 07/28/20 Page 11 of 28
`
`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.
`The Internet Archive admits that its headquarters are located in San Francisco, but
`54.
`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.
`The Internet Archive admits that it has received grants from the Kahle/Austin
`55.
`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.
`The Internet Archive admits that income from offering services and from
`56.
`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.
`The Open Library
`ii.
`The Internet Archive admits that it started Open Library in 2006 with the goal of
`57.
`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.
`Denied.
`58.
`59.
`Denied.
`
`
`
`
`
`10
`
`
`
`
`
`Case 1:20-cv-04160-JGK Document 33 Filed 07/28/20 Page 12 of 28
`
`Denied.
`60.
`The Internet Archive admits that an article titled Where to find what’s
`61.
`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.
`The Internet Archive admits that an article titled Internet Archive Expands
`62.
`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.
`Denied.
`63.
`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.
`Denied.
`65.
`66.
`Denied.
`
`
`
`
`
`11
`
`
`
`
`
`Case 1:20-cv-04160-JGK Document 33 Filed 07/28/20 Page 13 of 28
`
`The User Experience of the Website
`iii.
`The Internet Archive admits that a patron may sign up for an account using an
`67.
`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.
`Admitted.
`68.
`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.
`The Internet Archive admits that in the screenshot in Paragraph 69 of the
`70.
`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.
`The Internet Archive admits that it labels some books on Open Library with the
`71.
`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
`
`
`
`
`
`12
`
`
`
`
`
`Case 1:20-cv-04160-JGK Document 33 Filed 07/28/20 Page 14 of 28
`
`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.
`The Internet Archive lacks sufficient knowledge or information to admit or deny
`72.
`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 admits that books available for patrons to borrow on
`73.
`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.
`The Internet Archive admits that a patron is currently limited to borrowing ten
`74.
`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.
`The Internet Archive admits that it enforces an “owned to loaned” ratio that
`75.
`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.
`The Internet Archive admits that patrons that have checked out a book can read it
`76.
`on the BookReader interface. The Internet Archive further admits that this interface operates in a
`
`
`
`
`
`13
`
`
`
`
`
`Case 1:20-cv-04160-JGK Document 33 Filed 07/28/20 Page 15 of 28
`
`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.
`The Internet Archive admits that Adobe Digital Editions (“ADE”) facilitates
`77.
`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.
`The Internet Archive admits that patrons can borrow books available to “borrow”
`78.
`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.
`
`The Internet Archive admits that patrons can read books they borrow on capable
`79.
`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.
`The Open Library Is Not a Library, It Is an Unlicensed Aggregator
`iv.
`and Pirate Site
`The Internet Archive admits that the website OpenLibrary.org states that Open
`
`80.
`
`
`
`
`
`14
`
`
`
`
`
`Case 1:20-cv-04160-JGK Document 33 Filed 07/28/20 Page 16 of 28
`
`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.
`The Internet Archive admits that it received a Library Services and Technology
`81.
`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.
`Denied.
`82.
`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.
`The Internet Archive admits that the image in Paragraph 83 of the Complaint
`84.
`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.
`IA’s Industrial Book-Scanning Machine and Global Scanning
`v.
`Operations
`Denied.
`85.
`The Internet Archive admits that it developed the Scribe System and invent