In March of 2020, the Internet Archive, a nonprofit created by entrepreneur Brewster Kahle, launched a new feature called the National Emergency Library. Since COVID-19 restrictions had made it difficult or impossible for people to buy books or visit libraries in person, the Archive removed any limits on the digital borrowing of the more than three million books in its database, and made them all publicly available, for free. The project was supported by a number of universities, researchers, and librarians, but some of the authors and publishers who owned the copyright to these books saw it not as a public service, but as theft. Four publishers—Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House—filed a lawsuit. The Internet Archive shut the project down, and returned to its previous Controlled Digital Lending program, which allows only one person to borrow a digital copy of a book at any given time. But the lawsuit continued, with the publishers arguing that any digital lending by the Archive was copyright infringement.
Last week, Judge John G. Koeltl of the Southern District of New York ruled in favor of the publishers and dismissed every aspect of the Archive’s defense, including the claim that it is protected by the fair use exception in copyright law. Koeltl wrote that fair use protects transformative versions of copyrighted works, but that the Archive’s copies don’t qualify. The Archive tried to make the case that its digital lending is transformative because it “facilitates new and expanding interactions between library books and the web,” the judge noted. But he added that an infringing use does not become transformative simply by “making an invaluable contribution to the progress of science and cultivation of the arts.” A Google book-scanning project was found to be protected by fair use in a 2014 legal decision, but Koeltl pointed out that Google used the scans to create a database that could be searched, and thereby increased the utility of the books, rather than distributing complete digital copies. Any “alleged benefits” from the Archive’s lending “cannot outweigh the market harm to the publishers,” Koeltl wrote.
The scanning and lending of digital books is just one part of what the Internet Archive does. Founded in 1996, Kahle said he hoped the Archive would become a modern version of the ancient Library of Alexandria, and provide “universal access to all knowledge,” he told TechRadar. The Archive has created digital copies of more than seven hundred billion webpages, which are available for free through a service called the Wayback Machine. It has also archived millions of audio files, video games, and other software. A number of libraries, including some that have partnered with the Internet Archive, have offered a version of controlled digital lending for some time, based on the theory that limiting digital borrowing to a single copy of a book is similar to what libraries do with physical books. But publishers and authors were critical of it even before the current lawsuit—in 2018, the Authors Guild called the Archive’s lending program “a flagrant violation of copyright law”—and, until now, the legality of this model has never been tested in the courts.
Note: This was originally published as the daily newsletter for the Columbia Journalism Review, where I am the chief digital writer
If you buy a physical book, you are allowed to sell or lend it because of a legal principle known as the “first sale doctrine,” which gives the owner of an object the right to dispose of that object in whatever way they wish, regardless of copyright. The Internet Archive argued in the Hachette case that this should protect the sale or lending of a legally purchased digital copy, and that all of the copies of books the Archive has lent were lawfully acquired by libraries. Judge Koeltl didn’t buy this defense, however, and in rejecting it he cited an earlier case involving a company called ReDigi, which allowed users who had bought a digital music file to sell it, claiming that the “first sale” doctrine covered this breach of copyright rules. The company lost, because the courts ruled that selling a digital file creates a new copy, which isn’t protected by the “first sale” principle.
The Internet Archive’s lawyers alo argued that in the 1980s, the US Supreme Court ruled that using a Sony Betamax video-cassette recorder to make a copy of a TV show was fair use. In a similar way, the Archive argued that its digital copies of print books also “improved the efficiency of delivering content to one entitled to receive the content” in a way that didn’t “unreasonably encroach on the commercial entitlements of the rights holder.” Koeltl, however, dismissed this argument as well, saying: “IA is not comparable to the parties in Sony—either to Sony, the alleged contributory copyright infringer, or to the home viewers who used the Betamax machine for the noncommercial, nonprofit activity of watching television programs at home.” While Sony only sold the machines in question, he said, the Archive “scans a massive number of copies of books, rather than purchasing ebook licenses from the publishers,” as physical libraries do.
In a statement after the ruling, Brewster Kahle said the Archive will appeal the decision. “Libraries are more than the customer service departments for corporate database products,” he wrote. “For democracy to thrive at global scale, libraries must be able to sustain their historic role in society—owning, preserving, and lending books. This ruling is a blow for libraries, readers, and authors.” A nonprofit digital-rights group called Fight for the Future said that “a future in which libraries are just a shell for Big Tech’s licensing software and Big Media’s most popular titles would be awful—but that’s where we’re headed if this decision stands.” The group called it “patently absurd” to equate an e-book license issued by a “surveillance-ridden Big Tech company” with a digital book file that is owned and preserved by a “privacy-defending nonprofit library.”
Mike Masnick, who runs a tech commentary site called TechDirt, and also co-founded a digital think tank called the Copia Institute, wrote in a blog post that some of the judge’s decisions in the Internet Archive case seem questionable on a number of levels. For example, the fact that Koeltl ruled the Archive isn’t engaged in noncommercial or nonprofit activity, he said “is just weird,” since the entity is clearly a nonprofit, and doesn’t charge anything for the digital copies that it lends. Masnick also questioned Koeltl’s decision to throw out any comparison to Sony and Betamax. In many ways, he wrote, the Archive’s position “should be seen as stronger than Sony’s, because Sony actually was a commercial operation, and IA is literally acting as a library, increasing the convenience for its patrons, and doing so in a manner that is identical to lending out physical books.”
In September, more than three hundred authors, including well-known names such as Neil Gaiman and Naomi Klein, signed a letter criticizing publishers for launching lawsuits like the one against the Internet Archive. Such suits are “undermining the traditional rights of libraries to own and preserve books,” the letter stated, noting that a proposed law in Maryland that would have required reasonable fees for digital editions died after the Association of American Publishers sued. The letter also asked publishers to take steps to ensure that libraries would have the right to “permanently own and preserve books, and to purchase these permanent copies on reasonable terms, regardless of format.” Even when libraries have access to digital versions of books, it noted—something that happens rarely—the prices charged by publishers can be exorbitant.
Terrence Hart, the general counsel for the AAP, wrote in a response to the authors’ letter that publishers support libraries, and that this was not an issue in the infringement case against the Internet Archive because the Archive “is not a library.” A group of librarians disagree, however. In a statement on the Hachette decision, they argue that the publishers “seek to redefine the Internet Archive on their own terms and, in so doing, deny it the ability to leverage the same legal tools that thousands of other libraries use to lend and disseminate materials to our users.” The Archive, they said, “is the most significant specialized library to emerge in decades. It is, and continues to be, a modern-day cultural institution built intentionally in response to the technological revolution.”
This question at the heart of the Internet Archive case seems to be this: What is a library? Should a nonprofit entity that makes copies of legally acquired books and then allows users to borrow them be considered a library, or does the term describe only a small group of specific physical entities that cut deals directly with book publishers? And is the lawsuit against the Archive a valid defense against copyright infringement, or part of a broader attack on libraries and digital lending? For Masnick, the answer is clear, since he titled his post “Publishers Get One Step Closer to Killing Libraries.” Hyperbole? Perhaps. But like Amazon deleting copies of Orwell’s 1984 from users’ Kindles in 2009, the Archive case appears to be another example of copyright holders trying to remove rights in the digital sphere that we have grown used to in the physical world.