Back in March, just as the coronavirus pandemic began turning the lives of the American public upside down, the Internet Archive (IA) took a decision to launch a new service built on its existing Open Library.
IA’s National Emergency Library (NEL) combined scanned books from three libraries, offering users unlimited borrowing of more than a million books. The aim was for “displaced learners” to keep accumulating knowledge and education while restricted by quarantine measures.
Unrestricted eBook Borrowing Riles Copyright Holders
Under normal circumstances, users have restrictions placed on their lending. However, IA’s decision to suspend “waitlists”, which ordinarily prevent potentially unlimited copies of books being handed out at once, caused outrage among some authors, copyright holders and publishers.
Commenting on the creation of the library in March, the powerful Copyright Alliance described the actions of Internet Archive founder Brewster Kahle as “particularly vile“. The Authors Guild declared the library “contrary to federal law” and said that in common with other creators, authors need to make money from sales.
“Acting as a piracy site — of which there already are too many — the Internet Archive tramples on authors’ rights by giving away their books to the world,” the group wrote.
The big question remained, however. Would the major publishers continue to simply criticize the operation or actually do something about it?
Publishers File Massive Copyright Infringement Lawsuit
On June 1, 2020, that question was answered when Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC, filed a massive copyright infringement lawsuit against the Internet Archive.
“[The lawsuit] is about IA’s purposeful collection of truckloads of in-copyright books to scan, reproduce, and then distribute digital bootleg versions online,” the publishers’ complaint read.
“IA’s unauthorized copying and distribution of Plaintiffs’ works include titles that the Publishers are currently selling commercially and currently providing to libraries in ebook form, making Defendant’s business a direct substitute for established markets. Free is an insurmountable competitor.”
With claims of direct and secondary copyright infringement worth millions of dollars in statutory damages, the publishers had made their position clear. However, in a new announcement, Internet Archive founder Brewster Kahle now calls for cooperation and a peaceful end to hostilities.
National Emergency Library Will Close Early
“Today we are announcing the National Emergency Library will close on June 16th, rather than June 30th, returning to traditional controlled digital lending,” Kahle writes.
“We have learned that the vast majority of people use digitized books on the Internet Archive for a very short time. Even with the closure of the NEL, we will be able to serve most patrons through controlled digital lending, in part because of the good work of the non-profit HathiTrust Digital Library.”
Despite these factors, the early closure of the NEL was clearly motivated by the lawsuit filed earlier this month. However, the complaint wasn’t just about the NEL.
Lawsuit Targets Internet Archive’s Underlying Open Library, and More
In their lawsuit, the publishers describe the creation of the NEL as a ‘doubling down’ of Internet Archive’s existing infringing activities carried out as part of its Open Library project. According to them, it “produces mirror-image copies of millions of unaltered in-copyright works for which it has no rights and distributes them in their entirety for reading purposes to the public for free, including voluminous numbers of books that are currently commercially available.”
In short, the closure of the NEL doesn’t appear to particularly undermine the basis of the lawsuit and as Kahle notes, the litigation also has much broader implications.
“The complaint attacks the concept of any library owning and lending digital books, challenging the very idea of what a library is in the digital world,” Kahle says.
“This lawsuit stands in contrast to some academic publishers who initially expressed concerns about the NEL, but ultimately decided to work with us to provide access to people cut off from their physical schools and libraries. We hope that similar cooperation is possible here, and the publishers call off their costly assault.”
Internet Archive Calls for Cooperation and an End to Litigation
With so much at stake, Kahle’s call for peace is a step in the right direction. However, his suggestion for libraries, authors, booksellers, and publishers to move forward on the basis of ‘Controlled Digital Lending” (CDL) looks set to run into difficulties.
The publishers have already dismissed CDL “as an invented theory”, the rules of which “have been concocted from whole cloth and continue to get worse.” IA, on the other hand, characterizes CDL as a legal framework developed by copyright experts, allowing one reader at a time to read a digitized copy of a legally-owned library book, wrapped in DRM to protect publishers.
In contrast, the publishers argue that there is no provision in copyright law that offers a “colorable defense to the systematic copying and distribution of digital book files simply because the actor collects corresponding physical copies.” At least on paper, the parties couldn’t be any further apart.
What happens next is far from clear. The stakes are high on both sides so perhaps Kahle’s offer to enter discussions could be the route to a negotiated business plan, rather than all-out defeat for one party or another.
“We are now all Internet-bound and flooded with misinformation and disinformation—to fight these we all need access to books more than ever. To get there we need collaboration between libraries, authors, booksellers, and publishers,” he writes.
“Let’s build a digital system that works.”
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