The Internet Archive (IA) is a non-profit organization that aims to preserve digital history for generations to come.
The digital library is a staunch supporter of a free and open Internet and began meticulously archiving the web over a quarter century ago.
In addition to archiving the web, IA also operates a library that offers a broad collection of digital media, including books. Staying true to the centuries-old library concept, IA patrons can also borrow books that are scanned and digitized in-house.
Publishers vs. Internet Archive
The self-scanning service is different from the licensing deals other libraries enter into. Not all publishers are happy with IA’s approach which triggered a massive legal battle two years ago.
Publishers Hachette, HarperCollins, John Wiley, and Penguin Random House filed a lawsuit, equating IA’s controlled digital lending (CDL) operation to copyright infringement. Earlier this year a New York Federal court concluded that the library is indeed liable for copyright infringement.
The Court’s decision effectively put an end to IA’s self-scanning library, at least for books from the publishers in suit. However, IA is not letting this go without a fight and last week the non-profit filed its opening brief at the Second Circuit Court of Appeals, hoping to reverse the judgment.
Support from Authors Alliance
The Authors Alliance represents thousands of members, including two Nobel Laureates, a Poet Laureate of the United States, and three MacArthur Fellows. All benefit from making their work available to a broad public.
If IA’s lending operation is outlawed, the authors fear that their books would become less accessible, allowing the major publishers to increase their power and control.
The Alliance argues that the federal court failed to take the position of authors into account, focusing heavily on the publishers instead. However, the interests of these groups are not always aligned.
“Many authors strongly oppose the actions of the publishers in bringing this suit because they support libraries and their ability to innovate. Authors rely on libraries to reach readers and many are proud to have their works preserved and made available through libraries in service of the public.
“Because these publishers have such concentrated market power […], authors that want to reach wide audiences rarely have the negotiating power to retain sufficient control from publishers to independently authorize public access like that at issue here,” the Alliance adds.
This critique from the authors is not new. Hundreds of writers came out in support of IA’s digital book library at an earlier stage of this lawsuit, urging the publishers to drop their case.
The publishers didn’t listen to these concerns. They believe that IA’s library is disrupting the “ecosystem” and “market equilibrium” of ebook sales. However, the Authors Alliance now counters that the system is already out of whack, as publishers enjoy too much power.
“That ecosystem has long been out of balance, due not to the IA’s activities, but to these publishers’ leveraging of their power to insist on a marketplace in which they exercise almost absolute control over access, preservation, and research,” the Alliance notes.
According to the Authors Alliance, IA’s digital ebook library is a prime example of a service that should be permitted to operate as fair use, as it benefits both writers and readers.
Copyright Scholars Back IA
In a separate amicus brief, several prominent legal and copyright scholars, many of whom hold professor titles, raise similar arguments. They believe that IA’s lending system is not that different from the physical libraries that are an integral part of culture.
“Libraries have always been free under copyright law to lend materials they own as they see fit. This is a feature of copyright law, not a bug,” the brief reads.
What is new here, is that publishers now assert full control over how their digital books are treated. Instead of allowing libraries to own copies, they have to license them, which makes it impossible to add them to the permanent archive.
“The major publishers refuse to sell digital books to libraries, forcing them to settle for restrictive licenses of digital content rather than genuine ownership. Moreover, publishers insist they can prevent libraries from scanning their lawfully purchased physical books and lending the resulting digital copies.”
The scholars see IA’s library as fair use and note that the lower court ignored the long history of nonprofit library lending. It placed too much emphasis on the interests of publishers, largely ignoring the public benefits.
More Support Comes In
Thus far, the Court of Appeals has received four amicus briefs in support of IA’s library. In addition to the two mentioned above, others include a joint submission from the Center for Democracy & Technology, Library Freedom Project and Public Knowledge.
These groups also stress that the court focused too heavily on the publishers’ bottom line, while failing to properly take the rights of consumers into account.
“The district court should have more carefully considered the socially beneficial purposes of library-led CDL, which include protecting patrons’ ability to access digital materials privately, and the harm to copyright’s public benefit of disallowing libraries from using CDL.”
The scholars believe that IA’s scan-and-lend library is a prime example of fair use, placing the interests of all stakeholders more closely into balance.
“Here, market failure is evident: one side (the publishers) has such a dominant position that they control all the terms of any sale, without any countervailing forces to balance the market.
“Fair use was designed to address precisely this type of market failure. Thus, CDL should be upheld under fair use. Otherwise, a decision against CDL would harm the public mission of libraries and perpetuate the existing market failure,” they add.
With no shortage of support for the Internet Archive, the stakes of this legal battle are clear. Thus far, the publishers have yet to file their response, but it’s likely that they will also receive support from third parties.
The amicus briefs cited in this article are all available below (pdf)