In March 2020, the Internet Archive, a nonprofit created by the entrepreneur Brewster Kahle, launched a new feature called the National Emergency Library. Restrictions linked to the spread of COVID-19 had made it difficult or impossible for people to buy books or visit libraries in person, and so the Archive removed limits on the digital borrowing of the books in its database—of which there were more than three million, most of them in turn borrowed from physical libraries and scanned—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.
In June 2020, Four publishers—Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House—filed a lawsuit. The Internet Archive shut down the project, and went back to its previous policy of “Controlled Digital Lending,” which only allowed one person to borrow a free digital copy of a book at any given time. But this didn’t stop the lawsuit—because the publishers argued that any digital lending by the Archive constituted illegal infringement of the publishers’ copyright.
Last week, Judge John G. Koeltl, of the Southern District of New York, came down in favor of the publishers and dismissed every aspect of the Archive’s defense, including the claim that its lending program is protected by the “fair use” exception in copyright law. Koeltl wrote that the concept of fair use protects transformative versions of copyrighted works—a copy of a famous photo used in an artistic collage, for example—and that the Archive’s copies of books don’t qualify; the Archive made the case that its lending program is transformative because the practice “facilitates new and expanding interactions between library books and the web,” the judge noted, but he ruled that just because the Archive might be “making an invaluable contribution to the progress of science and cultivation of the arts” did not make the use transformative.Continue reading “When is a library not a library? When it’s online, apparently”