Update: The Internet Archive is no longer engaged in uncontrolled lending. – DR

It looks like we’ve got another major copyright lawsuit worth watching. The Association of American Publishers just issued a press release stating that several of its member publishers—including three of the Big Five—have just filed suit against the Internet Archive over its copyright-violating “Open Library”/”National Emergency Library” program. The plaintiffs include Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House.

As I’ve previously discussed, the Internet Archive’s Open Library operates by obtaining paper copies of books, scanning them, and making as many electronic copies available for checkout as it owns paper copies, a practice called Controlled Digital Lending. The Authors Guild openly complained about this a couple of years ago, but seemingly took no other action.

The Internet Archive has been running this library for literally years, but only recently became particularly brazen about it, taking advantage of the uproar surrounding the forced isolation of COVID-19 to expand its offerings to permit unlimited electronic checkout of these books via its National Emergency Library. I’ve wondered just how long it would take before the publishers finally got fed up enough to do something about it, and it looks like the answer has finally come.

Unlike the Google book-scanning lawsuit, in which the courts found that Google’s use of ebook scanning and indexing was fair, in this one I have to come down firmly on the side of the publishers. There’s no way to argue that any kind of fair use can apply to this en masse free lending. It’s copyright violation, plain and simple. And Brewster Kahle, copyright activist that he is, is fully aware of this. He seems to be trying to circumvent copyright by simply ignoring it—as if he’s trying the same kind of “adverse posession” scheme attempted by pulp ebook site Blackmask.com fifteen years ago, but on a much grander scale.

It’s going to be interesting to watch this case develop, and I look forward to seeing how it all shakes out. I can’t imagine that there’s any way the courts will allow the Internet Archive to continue this program.

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