Internet Archive has recently taken significant legal action for an appeal in their loss against major publishing houses Hachette Book Group, HarperCollins, Wiley and Penguin Random House. The case is centered on digital lending, a controversial issue in the world of copyright and digital media access.
Internet Archive is a nonprofit organization founded with the mission of providing “Universal Access To All Knowledge.” They aim to provide free access to media resources for researchers, people with disabilities, historians and the general public. For over 26 years, this organization has been building an expansive public digital library, preserving websites and archiving cultural artifacts. One of its main focuses is the digitization of books and working to ensure that everyone has the opportunity to access these resources. As of now, their library contains over 41 million books and texts
to view online.
In 2020, the library established the National Emergency Library, a temporary collection of thousands of digitized books created to aid individuals who lost access to libraries during the COVID-19 pandemic. The National Emergency Library allowed multiple copies of an e-book to be lent out simultaneously. This differed from their typical digital lending practices, which only permits ebooks to be available to one borrower at a time.
The publishing houses accused the National Emergency Library of “willful mass copyright infringement” due to its mass lending and distribution of copyrighted works. They said Internet Archive’s Emergency Library “grossly exceed[ed] legitimate library services” and “constitute willful digital piracy on an industrial scale.” The houses complained that the library disrupts the publishing ecosystem by providing copyrighted works for free, causing a loss of revenue for authors, publishers and bookstores.
In its defense, the Internet Archive says the National Emergency Library is legally permitted to distribute copyrighted works as it follows the model of Controlled Digital Lending (CDL). Through CDL, libraries are able to lend copyrighted material to borrowers under the condition that they maintain an “owned-to-loaned” ratio. This means that libraries must ensure that the number of copies of a title being lent out is equivalent to the number of copies they own.
Under the National Emergency Library, Internet Archive was circulating more copies of a book than it owned. The organization says the amount of books they lent was increased to “address the suddenly and temporarily uncirculating books locked up in closed libraries.”
In March 2023, U.S. District Court Judge John G. Koeltl ruled in favor of the houses, concluding that Internet Archive lacks any valid legal defense to justify the mass distribution of copyrighted content. In favor of Internet Archive, Koeltl stated that the order only affects books that the publishers distribute in electronic format and not the publishers’ full in-print catalog.
The ruling primarily affects the organization’s book lending program and does not significantly affect its other services. This means the Internet Archive retains the legal right to digitize books for preservation purposes. They may also continue the services they provide through the digitized collections, including interlibrary loans, citation linking, purchasing ebooks, access for disabled individuals, text and data mining and donation of books. While the ruling may restrict certain aspects of Internet Archive, its overall mission and services remain unaffected.
The archive submitted an appeal to the ruling in Sept. 2023. The organization expressed that it believed the court had made errors in its decision and that the National Emergency Library’s practices were lawful. They argued that the decision made by the court “holds back access to information in the digital age” and impacts libraries, authors and readers worldwide. Internet Archive say that fighting this decision will be integral to the survival of library collections in the digital age.
Brewster Kahle, the founder of Internet Archive, emphasized the significance of this ruling and the vitality of libraries in the modern age, stating, “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.”
