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“Counting on Judges to Support Libraries”: Internet Archive Appeals Verdict Against its Open Library

The appeal adds to the ongoing saga of a copyright lawsuit filed against the Internet Archive by four major publishing houses that consider Archive’s digital libraries as “willful digital piracy on an industrial scale.”

The Internet Archive has appealed a verdict from March that found that its “Open Library” program fell foul of copyright laws, The Verge reported. The appeal was filed at the Second Circuit Court of Appeals.

“The core values and library functions of preservation and access, equal opportunity, and universal education are being threatened by book bans, budget cuts, onerous licensing schemes, and now by this harmful lawsuit,” said Brewster Kahle, founder and digital librarian of the Internet Archive, yesterday. “We are counting on the appellate judges to support libraries and our longstanding and widespread library practices in the digital age.”

What is the Internet Archive appealing? The March verdict came after four publishers (Hatchette Book Group, Inc., Wiley and Sons, HarperCollins, and Penguin Random House) challenged the Internet Archive’s “National Emergency Library” in 2020. The new feature (an archive of learning resources started in response to the COVID-19 pandemic) was an extension of the Open Library service, which otherwise allows users to “checkout” digitised versions of physical books. Both initiatives were described by the publishing houses as “willful digital piracy on an industrial scale”.

The judge hearing the case agreed with the publishers, ruling that scanning and lending entire books didn’t fall under fair use copyright exemptions. After the judge ruled in favour of the publishers, the Internet Archive agreed to “expeditiously remove” books from its lending program once notified by the publishers, amongst other settlement agreements.

“Broadly, this injunction will result in a significant loss of access to valuable knowledge for the public,” said the Internet Archive in a statement following the verdict. “It means that people who are not part of an elite institution or who do not live near a well-funded public library will lose access to books they cannot read otherwise.”

Why did the publishers bring the case in the first place? The Internet Archive loaned out books through ‘controlled digital lending’—which is when libraries digitise physical copies of books they own, and then loan them out to borrowers one at a time. This can help improve access to less popular titles that don’t have publisher-issued e-books. This could be why formal publishers aren’t a fan of the model—they’d prefer it if libraries paid publishers for licensed e-books that are then lent out to the public.

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The publishers argued that controlled digital lending amounts to piracy, and that it “exists well outside the copyright paradigm.” An author’s right to monetise and market their own works becomes ‘meaningless’ if these models prevail, they argued.

However, the Internet Archive rebutted by saying that publishers don’t lose out monetarily through controlled digital lending. Libraries pay for physical copies of the book, even if digitised later. “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,” the Archive noted.

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I'm interested in stories that explore how countries use the law to govern technology—and what this tells us about how they perceive tech and its impacts on society. To chat, for feedback, or to leave a tip: aarathi@medianama.com

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