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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I think their unlimited lending policy is reasonable so long as it is restricted to the emergency period. It’s intended as a substitute for the physical library resources that are currently unavailable.
Continuing it after libraries reopen would not be fair to publishers.
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Thanks for your latest, Chris. Keep speaking your mind on this issue. I myself continue to disagree respectfully as TeleRead’s founder and publisher.
Blackmask’s pirate owner, put out of business by a lawsuit, did not restrict access. By contrast, the Internet Archive uses DRM to control access to some extent. Now that physical libraries are beginning to reopen, it could be harder to justify the National Emergency Library’s practice of loans of individual titles to unlimited numbers of users at once. But otherwise, with limits on the number of simultaneous checkouts, controlled digital lending is a far cry from what Blackmask was up to. Such a practice by the archive reflects the philosophy behind the doctrine of the right of first sale. I’d rather not see such a doctrine weakened, perhaps eventually affecting even paper library books. It sounds far-fetched. But considering the Trump Administration’s efforts to remake the judiciary branch, anything is possible long term.
That said, I can also see the writers and publishers’ side. The archive may or may not have the legal right to do controlled digital lending, but it ideally will also consider the moral issues here and arrive at a compromise with creators, especially of recent books.
As I see, the real issue is how precious little we are spending on intellectual property—for instance, just $1.5 billion a year by U.S. public libraries for content of all kinds. A mix of increased philanthropic and public funding could multiply this amount and expand the number of available titles. This is why I continue to favor a national library endowment (libraryendowment.org).
Edit: Here’s the Internet Archive’s March defense of the National Emergency Library.
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I observe the Internet Archive has stopped the practice of unlimited digital lending. I would appreciate an update to the article stating this fact.
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Hi, Ed. Done. I just wish the TeleRead site had the resources to keep everything up-to-date. Sadly, Chris Meadows, the author of the post, died last year. Beyond his being a friend, I badly miss his volunteer help. Of course, the dates on the articles should warn readers that the information is not necessarily current . Happy holidays. DR
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