The Internet Archive has pledged to appeal a judge's decision in a landmark copyright case brought against it by major publishers. In the case, the judge determined that the Internet Archive is liable for copyright infringement for a book lending library that became popular during the early stages of COVID-19.
Three years ago, the Internet Archive lifted one-to-one lending limits for 3.6 millions books to help countless teachers and students access materials that no one expected would suddenly become unavailable because of widespread COVID-19 lockdowns. This prompted four of the largest book publishers in the world to retaliate, suing the Internet Archive for copyright infringement.
Friday afternoon, Judge John G. Koeltl had found that the Internet Archive’s legal defense did not demonstrate how the nonprofit library’s actions excused them from infringing on publishers’ and authors’ copyrights.
Within hours of receiving the news, the Internet Archive announced its plan to appeal. Digital rights advocates, copyright lawyers, authors, and just overall fans of the Internet Archive have been quick to raise their fists in solidarity.
The decision is a major blow. The Internet Archive, which has become the poster child of a revolution on behalf of all libraries’ rights to own, lend, and preserve digital books, lost its motion for summary judgment.
This means that a new legal precedent has been set in U.S. case law that will affect how courts interpret exceptions to copyright infringement as they apply to how libraries lend digital books. This will also affect the overall perception of controlled digital lending, the legal framework that over 70,000 daily Internet Archive book borrowers have come to rely on.
The Internet Archive isn’t the only library that practices controlled digital lending, or book digitization. Many libraries practice controlled digital lending, which doesn’t always include scanning an entire book. To determine whether a certain application of controlled digital lending is fair use, a judge has four factors to go off: the purpose and character of the use, including whether the use is commercial or educational; the nature of the copyrighted work; the amount and substantiality of the portion taken; and the effect of the use upon the potential market.
In Hachette vs. the Internet Archive, Koeltl ruled that the publishers had a stronger claim to all four factors.
“What happened here is their fair use argument was just terrible,” Devlin Hartline, legal fellow for Hudson Institute’s Forum for Intellectual Property, told Motherboard. “What really got them was the first factor [of fair use] which looks at the purpose and character of the use, and in the second circuit, that’s essentially turned into one test, is it transformative.”
Both the publishers and the Internet Archive thought the fourth factor would work out in their favor. Ahead of the oral arguments, Joe Gratz, partner in Morrison Foerster’s Copyright Group and co-counsel to the Internet Archive told Motherboard that lending data from OverDrive, a leading ebook vendor for libraries, demonstrated exactly how many times a given book was lent in a given month is what led the defense to be able to conduct their own analysis. That lending data from OverDrive remains sealed to the public.
“[The plaintiffs] didn’t present any economic sort of quantitative analysis of how this affected them at all,” Gratz told Motherboard. “In fact, they told their experts not to conduct their own quantitative analysis of how much this affected them. They just sort of came up with reasons they didn't think our analysis was fully reliable, or ways that it could be improved.”
Koeltl wrote “It is no answer for [Internet Archive] to argue that the Publishers have provided “no concrete evidence” of past market harm… That is not the Publishers’ burden. A rightsholder bears only “'some initial burden of identifying relevant markets.'” The plaintiffs satisfied this, according to the judge, by pointing to the fact that a market for ebook licensing exists, and it is OverDrive. Whether or not that marketplace is viable, the judge determined, is another question that is beyond the scope of Hachette v. Internet Archive.
Ebook licenses for libraries is of real concern, particularly for because it inhibits preservation efforts, but also because the prices of these digital materials consume a large part of libraries’ budgets.
“Ultimately, what ends up happening is that libraries spend more of their money on licensing things that they don't own, which can be taken away at any time that are more expensive to begin with than buying hard copies in order to serve a segment of their population that uses ebooks, and that you ended up with a much smaller selection of materials, because the budget gets eaten so much faster,” Lynne M. Thomas, an academic librarian and magazine editor, told Motherboard.
The Internet Archive doesn't pay to license from vendors like OverDrive. So librarians didn’t take well to a statement from Brewster Kahle, founder and executive director of the Internet Archive after the judge’s opinion was published on Friday: “Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society—owning, preserving, and lending books.
This ruling is a blow for libraries, readers, and authors and we plan to appeal it.”
Ahead of the oral arguments, a gaggle of academic librarians by trade wrote for Inside Higher Ed that because publishers are hellbent on discrediting the Internet Archive as “not a real library,” all librarians should stand with the Internet Archive “as it fights for the right to buy, preserve and lend books, which is what libraries do.” Not all librarians felt behind that message, in part because while California officially recognized the Internet Archive as a “special library” in 2007, that designation is enough to separate them from some of the harassment librarians have faced as book bans have doubled since last year across the country.
“The Internet Archive is interested in being a library when it suits them to be a library, but they feel like they are tech disruptors when it doesn’t interest them to be a library” said Thomas. “They have different funding models and I think that the Internet Archive tends to work more with academic libraries and not as much with public libraries, and sadly, public libraries are the ones that are going to be the most affected by the choices that Internet Archive occasionally makes because public libraries have the most limited budgets and are the most under attack right now.”
In a response from Kahle, he affirmed that the Internet Archive just doesn’t want to see a world where librarians become completely beholden to databases that publishers sell libraries access to.
“The idea is that all libraries need to be able to continue to lend books, preserve old editions of books, and protect patrons’ privacy,” Kahle told Motherboard. “All libraries are fighting these fights against corporate publishers.”
It’s unclear at this point how the decision will impact libraries and digital ownership rights moving forward, but one thing is for sure: The fight will continue.