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Major Publishers Declare War On Digital Libraries

Updated: Apr 06, 2023 10:44
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Written By Habibi Bridges 

On Friday, the world’s largest internet library suffered a loss in court when a federal judge sided with four publishing powerhouses on a case that began in the early days of the pandemic.

The Internet Archive, a nonprofit digital library based in San Francisco, was sued by Hachette Book Group, HarperCollins, John Wiley & Sons and Penguin Random House in 2020 for “mass copyright infringement.”

The Internet Archive was founded in 1996 by Internet Hall of Famer Brewster Kahle in the pursuit of providing “ universal access to all knowledge”, who insists that its online lending practices are considered fair use. However, U.S. District Court Judge John G. Koeltl of New York’s Southern District ruled with the publishing quartet claiming that precedent supported the publishers.

The Internet Archive’s Open Library project works with libraries to scan physical copies in their collections and offer them as e-books for lending to the general public.  for allowing patrons to loan digitized books without the permission and compensation of their publishers. According to the verdict, Internet Archive had no right to scan and distribute any of the publishers’ 127 books that were named in the lawsuit.

The publishers’ argued that the Open Library project found a way for libraries to avoid paying e-book licensing fees that generated significant revenue for publishers. The fees are generally paid by aggregators such as OpenDrive which, according to Koeltl, support a “thriving” market which Open Library “supplants”. For example, Penguin generates $59 million per year from e-book licensing alone.

Judge Koeltl maintained that IA’s controlled digital lending process “merely creates derivative e-books that, when lent to the public, compete with those [e-books] authorized by the publishers.”

“At bottom, the Internet Archive’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book,” Koeltl’s opinion reads. “But no case or legal principle supports that notion. Every authority points the other direction.”

Koeltl then continued to add that Internet Archive may continue scanning and lending books that are protected under public domain.

While libraries generally license e-books from publishers, Internet Archive practices “controlled digital lending,” arguing that organizations holding a physical copy of a book may lend scanned versions to its patrons.

The case also partially involved the National Emergency Library which was a temporary online collection launched in 2020 which lent digital books while brick-and-mortar libraries were affected by COVID-19 lockdowns which operated between March 24, 2020 to June 16, 2020. 

While the Internet Archive generally lends out a single copy of an e-book at a time, the policy was suspended during the National Emergency Library’s service period which allowed multiple readers to access the same book simultaneously.

Many authors have previously criticized the Internet Archive for stretching existing book lending rules and lending books without permission, possibly depriving authors of potential earnings.

A professional organization of published writers known as The Authors Guild praised the judge’s decision by tweeting “scanning & lending books w/out permission or compensation is NOT fair use—it is theft & it devalues authors’ works.”, while the AAP (Association of American Publishers) published a statement stating that the “publishing community is grateful to the Court for its unequivocal affirmation of the Copyright Act and respect for established precedent”. 

The Internet Archive immediately took to Twitter after Koeltl’s ruling to declare the intent to appeal the judge’s decision and fight for “the traditional right of libraries to own, lend, and preserve books.”

The Internet Archive also published a statement on its blog, claiming that the decision would harm libraries, readers and authors. “For democracy to thrive at global scale, libraries must be able to sustain their historic role in society—owning, preserving, and lending books.”

The National Emergency Library and Open Library are only two services Internet Archive provides. The Internet Archive also runs a popular web archiving service known as the Wayback Machine among other things. Check them out here.


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