When is a library not a library? When it’s online, apparently

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.

In 2014, a court ruled that a book-scanning project led by Google was protected by the concept of fair use, but Koeltl pointed out, in his recent decision, that Google used the scans to create a searchable database, thereby increasing the utility of the books, rather than distributing complete digital copies. Any “alleged benefits” from the Archive’s lending, Koeltl wrote, “cannot outweigh the market harm to the publishers.”

Scanning and lending digital books is only one part of what the Internet Archive does. When he founded it in 1996, Kahle told TechRadar that he hoped it would become a modern version of the ancient Library of Alexandria, offering “universal access to all knowledge.” The Archive has since 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. Meanwhile, a number of physical libraries, including some that have partnered with the Archive, have offered a version of controlled digital lending for some time; limiting digital borrowing to a single copy of a book, after all, is similar to what libraries do with physical books. Until now, the legality of this idea had never been tested in the courts. But publishers and authors were critical of the practice even before the current lawsuit. In 2018, the Authors Guild, a professional association for writers, called the Archive’s digital lending program “a flagrant violation of copyright law.” 

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 a (physical) object the right to dispose of that object in whatever way they wish, regardless of copyright. The Archive argued that the same principle should protect the sale or lending of a legally purchased digital copy, pointing out that all of the copies of books that it lent out had previously been acquired lawfully by libraries. But Judge Koeltl didn’t buy this defense. 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. ReDigi claimed that the “first sale” doctrine applied to that practice, too, but the company ultimately lost that case, with the courts ruling that selling a digital file creates a new copy, which isn’t protected by the “first sale” principle.

The Internet Archive’s lawyers also pointed to a Supreme Court decision, from the nineteen eighties, ruling that using a Sony Betamax video-cassette recorder to make a copy of a TV show was fair use. The Archive argued that its digital copies of print books similarly “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, too, ruling that the Archive is not comparable “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, Koeltl said, the Archive “scans a massive number of copies of books, rather than purchasing ebook licenses from the publishers” as physical libraries do.

Koeltl’s ruling—and the rationale behind it—raised red flags for some. 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 the judge’s reasoning in the Internet Archive case is questionable on a number of levels. Koeltl’s ruling that the Archive isn’t engaged in noncommercial activity, Masnick wrote, is “just weird” since the Archive is clearly a nonprofit and doesn’t charge anything for the digital copies that it lends (although it does charge libraries for the book scanning).

Masnick also questioned Koeltl’s decision to throw out any comparison to the Sony and Betamax case. In many ways, Masnick wrote, the Archive’s position “should be seen as stronger than Sony’s, because Sony actually was a commercial operation, and [the Archive] 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.”

Nor did all professional authors celebrate the verdict. Last September, more than three hundred writers—including Neil Gaiman, Naomi Klein, and other household names—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,” their letter stated, noting that a proposed law in Maryland, which would have required reasonable fees for the right to lend digital editions, died after the Association of American Publishers sued. The letter also asked publishers 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, the letter noted, the prices can be exorbitant.

Terrence Hart, the general counsel for the AAP, wrote in response to the letter that publishers do support libraries, and that this was not at issue in the case against the Internet Archive because the Archive “is not a library.” At least one group of current and former university librarians disagreed, however. In a statement on the recent case, they argued that publishers are trying “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.” Not only that, the librarians wrote, but the Archive is actually “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.”

All this gets to the question at the heart of the Internet Archive case: 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 entities that cut deals directly with 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; he titled his post “Publishers Get One Step Closer to Killing Libraries.” Hyperbole? Perhaps. But—like Amazon deleting copies of Orwell’s Nineteen Eighty Four4 (yes, really) 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 become accustomed to in the physical world.

Fight for the Future, a nonprofit group focused on digital rights, said following the recent ruling 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.” Drawing a direct connection between book licensing and the internet economy in general, the group called it “patently absurd” to equate an ebook 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.” For his part, Kahle, of the Internet Archive, said that the Archive would 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.” 

Note: This was originally published as the daily newsletter for the Columbia Journalism Review, where I am the chief digital writer

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