Update, 30/3/23 at 10:45 pm: On March 24th, the Internet Archive lost the lawsuit against its digital lending program, but is reportedly planning to appeal the decision. Under US law, companies can share copyrighted work—and avoid copyright infringement—if the work is “transformative”. The federal judge presiding over the matter ruled that there was “nothing transformative” about the Internet Archive’s “copying and unauthorised lending” of digital books.
Why it matters: Brought by four publishers in 2020, the case raises questions about where free access to knowledge ends online and where copyright begins. As similar cases in India show, while authors and publishers deserve to control and monetise their work, closing down the Internet Archive’s current model of digital lending could seriously impact how millions of people across the world access books and knowledge online.
What is the Internet Archive?: This non-profit is trying to build a “digital library of Internet sites and other cultural artifacts in digital form”. Its stated mission is to enable “universal access to knowledge” by giving the public free access to its materials. The archive includes 735 billion web pages and 4.4 million images—but, by its own admission, the Internet Archive pays “special attention to books”. It offers digital versions of physical books that people can read online, with over 41 million books and texts available currently. And it’s this particular function that kickstarted the lawsuit.
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How does the Internet Archive lend out digitised books?: It uses a process called “controlled digital lending”. That’s when a library takes a physical copy of a book it owns, digitises it, and loans it out to borrowers one at a time. Commentators noted that this approach can help improve access to “older and less popular titles” which may not have publisher-issued e-books. That’s partially why publishers don’t like this model—they’d rather that digital libraries pay publishers for licensed e-books that are later lent to the public.
Why are publishers unhappy with the Internet Archive?: The Archive’s actions have cost the four publishing companies—Hachette Book Group, John Wiley & Sons Inc., Penguin Random House, and HarperCollins Publishers—”millions of dollars,” partly because:
- Controlled digital lending is basically piracy: The publishers think that the Archive’s book platform “constitutes wilful digital piracy on an industrial scale”. The model competes with the “licensed access library e-book market”, that the publishers prefer. Ultimately, authors and publishers depend on sales to survive—and the Archive is disrupting that relationship. Controlled digital lending is “an invented paradigm that is well outside copyright law”, they assert.
- Hurts copyright claims: Authors’ rights to monetise and market their works become meaningless under a model like this, argued a top executive of a publishing association. Authors and publishers should hold the exclusive rights to publish their works in all formats and distribute them using “select channels”, noted a brief filed by the publishers.
- Misleading to call the Archive a “library”: To sum it all up, the publishers argue that the Internet Archive “misappropriates the goodwill that libraries enjoy and have legitimately earned”.
And how’s the Archive responding?: Unsurprisingly, it thinks the publishers’ arguments lack mettle.
- Lending practices are legal and fair: The Archive’s practice of lending out books one at a time works similar to how physical libraries have the right to share their collected works with the public. Copyright law doesn’t prevent lending books to a person one at a time. Controlled digital lending is also protected by fair use under copyright law—which is a “legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances”.
- Authors and publishers aren’t suffering financially because of digitised libraries: “Libraries deciding how to meet their patrons’ needs for digital access to books are not making a choice between paying e-book licensing fees or getting books for free. Libraries pay publishers under either approach,” notes the Archive in a brief. What that means: libraries anyway pay for their print collections, and are incurring more costs to digitise those resources. Controlled digital lending allows them to make fuller use of the resources they’ve anyway bought.
- Case more about who shapes access to books: The Court’s being asked to decide if copyright law gives publishers the power to tell libraries which books in their collections can be digitally loaned, Internet Archive argues.
It’s in the publishers’ interest if the Internet Archive isn’t recognised as a library, some commentators argue. If that happens, then the Archive can’t “leverage the same legal tools that thousands of other libraries use to lend and disseminate materials” to the public.
Have there been similar cases on issues like these?: Yes, says the Wall Street Journal. Google’s parent Alphabet was similarly sued for creating a database of millions of scanned books. Users could search through it for specific terms, and preview small chunks of the works in which the words appeared. Lower courts in the US argued that the database amounted to “fair use” under copyright law—this “searchable digital card catalog” had public benefits. The US Supreme Court refused to review the verdict.
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