SAN FRANCISCO—The Internet Archive has asked a federal judge to rule in its favor and end a radical lawsuit, filed by four major publishing companies, that aims to criminalize library lending.
The Internet Archive, headquartered in San Francisco, is a 501(c)(3) non-profit library which preserves and provides access to cultural artifacts of all kinds in electronic form. The motion for summary judgment, filed Thursday in the U.S. District Court for the Southern District of New York by the Electronic Frontier Foundation (EFF) and Durie Tangri LLP, explains that the Archive’s Controlled Digital Lending (CDL) program is a lawful fair use that preserves traditional library lending in the digital world.
The brief explains how the Internet Archive is advancing the purposes of copyright law by furthering public access to knowledge and facilitating the creation of new creative and scholarly works. The Internet Archive’s digital lending hasn’t cost the publishers one penny in revenues; in fact, concrete evidence shows that the Archive’s digital lending does not and will not harm the market for books.
“Should we stop libraries from owning and lending books? No,” said Brewster Kahle, the Internet Archive’s founder and digital librarian. “We need libraries to be independent and strong, now more than ever, in a time of misinformation and challenges to democracy. That’s why we are defending the rights of libraries to serve our patrons where they are, online.”
Through CDL, the Internet Archive and other libraries make and lend out digital scans of print books in their collections, subject to strict technical controls. Each book loaned via CDL has already been bought and paid for, so authors and publishers have already been fully compensated for those books. Nonetheless, publishers Hachette, HarperCollins, Wiley, and Penguin Random House sued the Archive in 2020, claiming incorrectly that CDL violates their copyrights.
“The publishers are not seeking protection from harm to their existing rights. They are seeking a new right foreign to American copyright law: the right to control how libraries may lend the books they own,” said EFF Legal Director Corynne McSherry. “They should not succeed. The Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves. They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world. Copyright law does not stand in the way of a library’s right to lend its books to its patrons, one at a time.”
Authors and librarians are speaking out in support of the Internet Archive.
“In the all-consuming tide of entropy, the Internet Archive brings some measure of order and permanence to knowledge,” said author Tom Scocca. “Out past the normal circulating lifespan of a piece of writing—or past the lifespan of entire publications—the Archive preserves and maintains it.”
“The library’s practice of controlled digital lending was a lifeline at the start of the pandemic and has become an essential service and a public good since,” said Benjamin Saracco, a research and digital services faculty librarian at an academic medical and hospital library in New Jersey. “If the publishers are successful in their pursuit to shut down the Internet Archive’s lending library and stop all libraries from practicing controlled digital lending, libraries of all varieties and the communities they serve will suffer.”
For the motion: https://www.eff.org/document/hachette-v-internet-archive-internet-archives-memorandum-summary-judgment
For more on the case: https://www.eff.org/cases/hachette-v-internet-archive