Big Publishers Are Putting The Internet Archive On Trial

Two years after four corporate book publishers jointly sued the Internet Archive (IA) for copyright infringement, the website’s lawyers have asked a federal judge to recognize its digital book lending practice as lawful fair use through a motion filed last week in a U.S. District Court. 

Copyright experts say the stakes couldn’t be higher. If the motion fails, they say, the resulting legal fallout would not only threaten the Internet Archive’s existence but curtail digital ownership rights for everyone on an astronomical scale. 

“I think the case with the publishers has implications not just for the Internet Archive but an attack on the libraries’ protected value to the community including the right to loan, preserve, and provide access to materials,” Kyle K. Courtney, a copyright advisor at Harvard Library and co-founder of Library Futures Institute, told Motherboard. “It’s a warning shot across the bow for libraries that loaning is a problem for publishers, enough so that they’re bringing a lawsuit about it even though we’ve been loaning for centuries.” 

At issue in the case is whether a library can lend scanned digital copies of print books that have been purchased by the library but removed from its physical shelves. This method is characterized by the software’s ability to limit the number of “copies” of a book lent out to patrons at any given time, just like it would for physical books. 

In March 2020, when people were encouraged to follow “stay-at-home” quarantine orders to help stop the spread of COVID-19, the Internet Archive temporarily removed the lending limits of 1.4 million digitized print books from its mammoth collection of online artifacts by suspending its two-week waiting period, creating what it called a “National Emergency Library.” 

Publishers and authors’ rights groups were quick to push back. In June 2020, Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC filed suit for “willful mass copyright infringement.” The Author’s Guild likened the Internet Archive to a piracy website, and the Copyright Alliance described its founder and executive director Brewster Kahle as someone who loots homes and throws bricks through store windows.

“This lawsuit is not just an attack on the Internet Archive—it is an attack on all libraries,” Kahle said during a press conference last week. “The publishers want to criminalize libraries’ owning, lending and preserving books in digital form.” 

For the plaintiffs, the case hinges on 127 titles the publishers have identified as commercially available and whose copyrights Internet Archive has allegedly infringed upon. These include the strictly-Grisham-Patterson-shelf titles, thrillers like Gone Girl by Gillian Flynn, children’s books like Little House on the Prairie, contemporary novels like The Miseducation of Cameron Post by Emily M. Danforth, and nonfiction works from Malcolm Gladwell, Elie Wiesel, and Bill Bryson. 

The news of the case quickly spread on social media, inspiring heated debates between information access advocates and authors protective of intellectual property rights. Popular authors affiliated with major publishers have publicly stated they do not support the lawsuit, including Neil Gaiman and Chuck Wendig. 

Barbara Fister, a crime-thriller writer and retired academic librarian, says she was thrilled to see her commercial fiction books listed in the Internet Archive’s “National Emergency Library.” As she explains, her books were published back in the late aughts, which is considered “a long time ago” for librarians curating collections.

“Public libraries need current stuff, that’s what readers are looking for, so they need space and they get rid of the older things,” Fister told Motherboard. “So my books aren’t in many public libraries anymore. My books also have not been burned into library ebooks sold through a major book licensing platform like Overdrive.” 

Fister also notes that Internet Archive’s digital book lending software is less convenient than other ebook reading platforms like Amazon’s Kindle app or Overdrive’s Libby app. 

“I think the Archive’s interface is really cute but it’s not the kind of thing that people would turn to read,” she added. “It’s just a little bit more work to read books through the Internet Archive and discover books. There’s a little bit of friction in the design of the system, which is partly this intentional attention to fair use and what you need to do to induce some friction so that it doesn’t violate fair use.”

A spokesperson for the Association of American Publishers did not provide comment when contacted by Motherboard. Instead, the spokesperson pointed to the organization’s recent press release, which accuses the Internet Archive of “robbing authors and publishers of their ability to control the manner and timing of communicating their works to the public,” and claims that the nonprofit “makes no investment in creating the literary works it distributes and appears to give no thought to the impact of its efforts on the quality and vitality of the authorship that fuels the marketplace of ideas.”

In 2018, Courtney co-wrote the white paper on the controlled digital lending (CDL) of library books—the formula that the Internet Archive’s digitized print book collection used until the nonprofit suspended “National Emergency Library” waitlists. Courtney argues that removing the waitlists should be considered “fair use in a case of emergency,” and that any supposed damage to publisher profits was relatively insignificant. 

“The factors that exist under the fair use statute are designed to be flexible based on the situation that’s being presented,” Courtney told Motherboard. “In this case, again, especially during the height of the closures, we had something very interesting going on. We had collections that had been purchased and owned by all sorts of libraries and archives that were totally inaccessible. The concept here is that there was very little market harm that was going to result from this because these were books that were already purchased to be used, they were just unable to be accessed.” 

Under U.S. copyright law, the first factor determining “fair use” focuses on the purpose and character of the use—for instance, whether it is for commercial or nonprofit educational purposes. Courts also typically focus on whether the use is “transformative,” which refers to whether the work adds a new expression or meaning or if it merely copies the original work. In Sony Corp. of America v. Universal City Studios (1984), the Supreme Court voted that Sony did not infringe on the studios’ copyrights by manufacturing and marketing Betamax VHRs, which set a legal precedent that something can be transformative if it utilizes technology to achieve that transformative purpose. In this case, Courtney says the Internet Archive can argue it was improving the delivery of content without unreasonably encroaching on the commercial entitlement of the rightsholder. 

The Internet Archive’s legal team claims it's confident in its fair use argument, though it’s painfully aware of the case’s high stakes.

“If the publishers prevail, they will be seeking damages like statutory damages and injunctive relief in the sense of preventing the Archive from continuing to operate [digital lending] with respect to these particular publishers,” Corynne McSherry, legal director at the Electronic Frontier Foundation said during a press conference Friday. “That would be a blow not just for the Archive, that would be a blow for the public, that would be a blow for all libraries.” 

Courtney believes one way the plaintiffs are trying to sway public opinion on the case is by repeatedly claiming that the Internet Archive is not a library. That way, if the Archive loses, publishers would be able to seek higher damages. This is because the law protects libraries and archives by preventing statutory damages if they can prove the infringement was a good faith effort in fair use. 

“If they’re not a library, then they can’t plea that damages provision,” Courtney said. “But libraries are winners. The public and the court understand our mission transcends a business interest. It’s a public interest.”