AN OPEN LETTER TO A COPYRIGHT INFRINGER

The author and publisher will sue any and all copyright infringers. We have done so successfully in the past and will continue to do so. BE WARNED.  Compliance with a DMCA Takedown Notice may or may not be sufficient to protect your assets from a lawsuit.

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Wednesday, February 06, 2019

To: Internet Archive  info-reply@archive.org

Subject: DMCA Takedown Notice
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To Whom It May Concern:

Please be advised of the following information that may inform you of the severe legal jeopardy in which you are apparently unaware you are in. Many laymen, and even some attorneys who do not specialize in Internet law, believe the DMCA safe harbor provisions insulate them from legal liability for copyright violation in all instances. They are wrong— and that mistaken belief has cost their clients hundreds of thousands of dollars or more in penalties and subsequent legal fees and costs. There are exceptions to the conventional wisdom that paying lip service to certain aspects of the DMCA safe harbor provisions will immunize them from prosecution for copyright violation. I speak from expertise in this field as an attorney who has never lost a case since 1987 and as an acknowledged expert in internet law who literally wrote the book on the subject that is now used as a textbook in colleges, universities, and law schools on four continents.

The DMCA safe harbor provisions offer a defense to a charge of copyright infringement when third parties post infringing material on a website, and such infringing material is removed in a timely manner by the website owner upon notification of the infringement. Note, the DMCA provides no protection for infringing material posted on a website by the website owner or one in control of said website rather than by third-party users, as is the case in this situation. Your own description, to wit:

“Under this program, The Internet Archive and physical library partners make available e-copies of books scanned from the physical books that we own. The e-copies may be borrowed for two weeks, after which access to the user is disabled and the copy frees up for another patron to borrow.”

is a textbook example of copyright infringement in violation of the US Copyright Act of 1976 and is totally unprotected by the aforementioned safe harbor provisions of the DMCA for several reasons, including the one mentioned above. Specifically, you admit (1) the infringing material is posted by the Internet archive itself and physical library partners, and not by third-party users. (2) Under the laws of partnership, The Internet Archive is legally liable for the illegal acts, i.e., copyright infringement, of any of its proclaimed and named partners, just as these partners are equally liable for any infringement perpetrated by The Internet Archive. (3) You admit that you “make available e- copies of books scanned from physical books that we own.” The active scanning copyrighted print books is a violation of the exclusive right of copying granted the copyright holder under the 1976 US Copyright Act. Furthermore, the active “making available”, i.e., distribution of the infringing material is an additional violation of the exclusive right of distribution granted the copyright holder under the 1976 US Copyright Act. Your admission that “The e-copies may be borrowed for two weeks, after which access to the user is disabled and the copy frees up for another patron to borrow.” is further evidence of the violation of the exclusive right of distribution granted the copyright holder under the 1976 US Copyright Act and also serves to illegally deprive said copyright holder of sales of said lawfully copyrighted work which you are either selling for your own pecuniary gain or distributing free of charge to individuals who would otherwise be required to compensate the copyright holder pecuniarily as foreseen and required by the federal copyright laws which you are in violation of.

You admit that you are producing “e-copies of books scanned from the physical books that we own.” First, our statutory copyright encompass a bundle of rights that include the rights to produce both print books and electronic books of the copyrighted material. By illegally reproducing our copyrighted material from a print format to an electronic format, you are infringing on both of these protected exclusive rights contained within our copyright. Furthermore, you state these are books you own. Let us be perfectly clear: while you may own an individual copy of a physical book under the First Sale doctrine, you do not in any way shape or form have any claim or ownership in the copyrighted content of said book. You do not own the copyrighted material and it is illegal infringement on your part to copy, distribute, or sell said protected material.

Your protestations that you are a registered charity and nonprofit library, or that you make such violations available to the public on a “limited basis” have no legal bearing other than to establish your guilt in copyright infringement. Furthermore, your statement that “we have made a good faith effort to disable lending access to any e-book instances of the identified works or items on our sites, archive.org and openlibrary.org.” Is nothing more than a disingenuous lie: as of the writing of this letter, the infringing material remains available on your site for download in violation of our copyright. Your further statement  “As mentioned above, we have disabled lending access in this instance as a courtesy.” Is equally disingenuous and equally untrue, as lending access as of this writing has not been disabled and the infringing material is still available for download in the copyright violation continues.

You further write “We seek to be respectful to creators and operate within the traditional norms and functions of libraries.” This too, is disingenuous and yet another lie. The traditional norms and functions of libraries are to order copies of our publications through distributors such as Baker and Taylor, Ingram, Coutts, and many other fine wholesalers. When necessary, we have also worked directly with libraries, as well as schools internationally, and even providing specially adapted versions for disabled students. Your actions, which are in total violation of copyright law including the DMCA are in no way operating within the traditional norms and functions of libraries. Note under  17 U.S. Code §1201 (d) the library exemption is not applicable in this case and under subsection  (3) A nonprofit library, archives, or educational institution that willfully for the purpose of commercial advantage or financial gain violates paragraph (1)— (A) shall, for the first offense, be subject to the civil remedies under section 1203; and (B) shall, for repeated or subsequent offenses, in addition to the civil remedies under section 1203, forfeit the exemption provided under paragraph (1).

Nor does the DMCA safe harbor provide protection for  persons circumventing a technological measure that effectively controls access to a work protected under the DMCA, such as by electronic conversion of a print book to an ebook through digital means. 17 U.S. Code §1201.

You close by stating “We understand that some may view this program differently than we do and appreciate your contacting us.” As you undoubtedly surmise, we certainly do view this program differently. It is nothing more than a blatant attempt at copyright infringement and we intend to prosecute to the fullest extent of the law; rest assured, we are experienced in these matters and have the time and financial resources required to pursue this matter to a satisfactory conclusion. We reserve the option to conduct further investigation to determine if this is a wide-ranging abuse of copyright laws that may lend itself to later certification as a class action lawsuit. While removing the infringing content may mitigate further damages it will not absolve you of liability for your ongoing infringement to this point. You may have your legal representative contact me directly or you may wait until you receive service of process once the complaint has been filed in Federal Court.

KINDLY GOVERN YOURSELVES ACCORDINGLY,

Keith B. Darrell, Attorney-at-Law
Amber Book Company LLC