Four American publishers — Penguin Random House, Hachette, HarperCollins and Wiley — have sued Internet Archive for its Open Library in general and its National Emergency Library in particular. The latter had suspended the waitlists on its digital lending mechanism until June 30, 2020 or the end of USA’s national emergency (whichever is later), and made its 1.4 million digital books can be digitally borrowed by multiple readers simultaneously. The publishers are seeking statutory damages on each work that has been infringed, damages that the publishers have sustained because of the infringement and profits that Internet Archive has earned through such acts. The publishers want the court to declare Open Library’s practices as “wilful copyright infringement” and issue a permanent injunction against Internet Archive that also orders it to destroy all “unlawful” copies.

They filed a lawsuit in the Court of Southern District of New York on June 1. Publishers Marketplace first reported this development.

All the four publishers are members of the Association of American Publishers which, according to its website, represents publishers in the US “on matters of law and policy”. In their petition, they clarify that this is not about books that the Internet Archive has permission to distribute, or are in public domain, or about the “occasional transmission of a title under appropriately limited circumstances”.

In response, Brewster Kahle, the founder of Internet Archive, wrote on the official Internet Archive blog:

“This morning, we were disappointed to read that four commercial publishers are suing the Internet Archive.

“As a library, the Internet Archive acquires books and lends them, as libraries have always done. This supports publishing, authors and readers. Publishers suing libraries for lending books, in this case protected digitized versions, and while schools and libraries are closed, is not in anyone’s interest.

“We hope this can be resolved quickly.” — Brewster Kahle

What is the National Emergency Library?

On a typical, non-COVID-19 affected day, the Internet Archive, through its Open Library, allowed users to digitally borrow a book for two weeks. The number of borrowers were determined by the number of physical/digital copies of the book that Internet Archive had legally acquired (either through purchase or donation). Thus, if it had acquired 6 books and the book was requested by 7 people, the seventh person would be placed on a waitlist. This is the idea of controlled digital lending that multiple libraries across the US support.

Because of the pandemic and the consequent national lockdown in the US, the Internet Archive removed the waitlists so that even if they have only 6 legal physical/digital copies of the book, more than 6 people could borrow it. This NEL is in effect until June 30 or until the national lockdown in the US ends, whichever is later.

It is this National Emergency Library that the publishers have filed a lawsuit against.

Publishers’ arguments

  • “Free is an insurmountable competitor”: Since Internet Archive copies and distributes books that have been recently published and makes them available for free, it acts as “a direct substitute for established markets”. This “devalues” the book market and publishing process. It also undercuts the work done by and donations made to public libraries.
  • Internet Archive exploits the work done by publishers: Publishers, not Internet Archive, do the hard work of researching, writing and publishing works that are ultimately used by educators, students and other readers. Internet Archive does not contribute at any of these steps or to the scholarship itself, nor invests in the “expenses that go into publishing a book”.
  • Controlled Digital Lending is an invented theory and has no basis in law: Conflation of physical and e-books is “fundamentally flawed” as e-books’ distribution is much easier, and they do not degrade over time. This is why, publishers have different distribution models for e-books, including for lending e-books through libraries, and use digital rights management technology (DRM) to restrict the use and further distribution of e-books.
  • Internet Archive’s physical copies of the book are not meant to be read. IA acquires entire libraries through its “acquisition program” to build its physical archive that is not read but only “exists to rationalize, or provide the predicate for, IA’s argument that there is a one-to-one correlation between print copies legitimately owned and their illegitimate ebook scanned copies”. The physical copies are stored in shipping containers owned by IA in Richmond, California.
  • Even books under copyright are available to read and download for free: Books such as To Kill a Mockingbird, which is still under copyright, are available to be read for free. They do not have to be borrowed.
  • Free digitisation and distribution by Internet Archive is illegal: Fair use does not allow for the “systematic mass copying or distribution of entire books”, something that publishers already provide for “through lawful and established channels”. Other large-scale book digitisation projects, such as Google’s and HathiTrust’s, did not make entire books freely available online.
  • Distribution through digitisation violates Section 109 of the American Copyright Act: Internet Archive’s low quality scans mean that IA is distributing more than its own physical copy of the book.
  • Misleading to call Internet Archive a “non-profit”: The petitioners have said that Internet Archive is a “highly commercial enterprise” that has earned over $100 million that fund its “infringing activities”. Some of the “services” that it sells to clients (including libraries) include “industrial-scale book scanning services”.
  • Open Library is “an unlicensed aggregator and pirate site”: The Open Library is not an accredited library. By calling itself the Open Library, it “misappropriates the goodwill that libraries enjoy and have legitimately earned”.
  • Internet Archive “opportunistically seized” upon the pandemic to launch NEL, especially because publishers and libraries provided free e-book copies to library patrons, and publishers donated “thousands of print books”, worked closely with schools, colleges and teachers “to ensure access to and availability of books necessary for online learning”. Libraries also allowed new patrons to sign up for library cards online.
  • Despite notices in the past, Internet Archive has continued to infringe on copyright: HarperCollins had sent IA a written notice in 2018 that the Open Library infringed upon HC’s copyright, but IA persisted.
  • Link to buy the book directs users to IA’s founder’s website: The “Buy this book” link directs to Better World Books, a largely used online bookseller “owned by a shell company controlled by IA founder, Brewster Kahle”. It does not link out to the publishers’ websites or the authors’. This website also functions as a feeder for Internet Archive since Better World Books acquires “mass quantities of used print book” as “library Discards & Donations”.
  • Sponsoring a book is a means to acquire books that IA wants to infringe upon: Through the sponsorship programme, IA asks users to “sponsor” books that it does not have in its collection. Through the sponsorship money, IA buys a physical copy of the book, scans it and uploads a digital copy to the website.

***Update (June 4, 2020 10:03 am): Updated with Internet Archive’s response from its blog (hat tip: Manish Singh). Originally published on June 2, 2020 at 5:25 pm.