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A federal judge ruled in favor of the top four publishers in the US, who are suing the Internet Archive for scanning numerous digital copies of copyrighted books and lending them out for free in the early days of COVID-19.
Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House all sued the nonprofit after offering a National Emergency Library, a temporary book collection created from thousands of e-books, from March 24, 2020 through as of June 16, 2020. The Internet Archive says the emergency library was launched to help people who have lost access to their physical libraries during the pandemic.
For the National Emergency Library, the Internet Archive loaned multiple copies of a digital book at once, and the four publishers sued over 127 books in the collection. The Internet Archive said the National Emergency Library is legal under the fair use doctrine, publishers say the act was “mass copyright infringement.”
US District Court Judge John G. Koeltl agreed with the plaintiffs, saying the Internet Archive creates “derivative” works by converting printed books into e-books and distributing them. She is no longer entitled to do this.
“Libraries are more than customer service departments for corporate database products. For democracy to thrive on a global scale, libraries must be able to maintain their historical role in society – owning, preserving and lending books,” said Brewster Kahle, founder of the Internet Archive. “This ruling is a blow to libraries, readers and authors, and we plan to appeal.”
Here’s what you should know about the case.
What is the Internet Archive?
The Internet Archive is a non-profit organization that has built a “digital library” of websites, books, audio recordings, videos, images, and other research for the general public. Through digital archives like their Wayback Machine, people can access now-defunct websites from more than 25 years ago. The non-profit organization has been digitizing books since 2005. To date, it scans more than 4,000 books every day at 18 locations around the world.
The Internet Archive, which creates e-books by scanning the printed version of the novel, has 3.6 million in-copyright books in its online archive, according to the court ruling.
Of those millions, they offer free, downloadable books published before 1927. Other more modern books can only be borrowed from their Open Library, whose vision is “to make all the published works of mankind available to everyone in the world”. Users just need to create a free account to borrow the digital copy of the book.
The nonprofit organization is also a member of a number of associations, including the American Library Association and the International Federation of Library Associations and Institutions.
What did the Internet Archive argue?
Due to the first sale principle, libraries have the right to loan physical books to patrons, which grants individuals who own a copyrighted book the right to sell, display or lend that copy.
Under the Internet Archive’s regular model, users are not allowed to download e-books in bulk. Instead, it works through “controlled digital lending” that “entitles[ies] who own a physical book to scan and circulate that book [the] digitized title instead of [the] physically in a controlled way.”
However, controlled digital lending also presupposes that libraries only loan out as many copies as they have. The Internet Archive counts its own physical copy of a book and up to one book copy owned by its partner libraries to determine the number of e-books they can borrow.
However, during the pandemic, they refrained from this practice and lent out more digital book copies than the courts found them entitled to.
The Internet Archive claims that they did not commit any copyright infringement due to the fair use doctrine. This doctrine states that “purposes such as criticism, commentary, news reporting, teaching (including multiple copies for educational use), scholarship, or research do not constitute copyright infringement,” the court held.
Koeltl ruled that the Internet Archive’s use of e-books in launching the National Emergency Library did not meet those standards, but also in the broader use of the lending library, and said there was nothing “transformative” about using e-books. Books, which gave them the right to “scan these books and lend out the digital copies en masse.
“IA’s fair use defense rests on the notion that the lawful acquisition of a copyrighted printed book entitles the recipient to make an unauthorized copy and distribute it in lieu of the printed book, so long as the recipient does not lend the printed book at the same time.” added Koltl. “But no case or rule of law supports that notion. Every authority points the other way.”
The Internet Archive retains the right to scan and distribute books in the public domain.
How are people reacting to the case?
The Authors Guild, an organization that offers professional authors resources ranging from legal advice to protecting authors’ copyrights, tweeted on March 25 that she was “thrilled” with the court’s decision.
“As we have long argued, scanning and lending books without permission or compensation is NOT fair use — it is theft and devalues the authors’ work,” she added.
The guild too claimed that they were approaching the Internet Archive years ago to create a license for books to be used in their Open Library, but the nonprofit declined to work with them.
However, more than 300 prominent authors – including Naomi Klein, Neil Gaiman, Hanif Abdurraqib, Chuck Wendig and Cory Doctorow – previously signed an open letter urging publishers and business groups to drop the lawsuit at the end of September.
“Big Publishing would ban public libraries if it could – or at least make it impossible for libraries to buy and lend books as they have traditionally done, to enormous public benefit – and its campaign against the Internet Archive is a step in that direction of that goal,” said Dan Gillmor, co-founder of News Co/Lab, a news literacy initiative at Arizona State University.