On July 7, four publishing houses moved for summary judgment in a case that is not only about the viability of publishing in the digital era but about the viability of the copyright laws that make literature, movies, music, photography, and other valuable and beloved creative works possible.
One of America’s greatest strengths is its ability to foster creativity, entrepreneurship, and innovation. For more than 200 years, the Copyright Act has served to offer authors, artists, and creators the protections they need to be able to excel in their work, and also to make a living doing it. It empowers authors with exclusive, marketable rights that protect them from having their work stolen and reproduced and distributed without their permission.
The Internet Archive seeks to evade those protections, having amassed a collection of more than three million e-books of every genre, which it makes available online, without paying the rights holders a cent for exploiting their works. That’s theft, plain and simple. In no other industry would it be seen as acceptable to simply reproduce and distribute somebody else’s product without their permission and without paying them. While Internet Archive claims it’s striving to give the entire world access to millions of books, what it really does is steal the life’s work of authors and, without their consent, create direct competition to an otherwise thriving literary ecosystem that includes public libraries.
The marketplace already provides libraries with robust, legitimate access to e-books. In fact, OverDrive, the leading digital reading platform for libraries and schools, reports that during 2021 “libraries achieved all-time records for circulation, while lowering the average cost-per-title borrowed,” with more than 120 libraries reaching one million digital checkouts. This is the result of decades of investment by publishers in developing mechanisms to achieve a sustainable digital market for books. Publishers deeply value libraries and recognize the important role they play in promoting both literacy and authors.
Importantly, libraries pay authors and publishers when they purchase e-books for digital lending. So Internet Archive is not filling some void in the library system; it is directly competing with the library system to the detriment of the publishers and authors who created the very content that is so critical for the public to access. And Internet Archive is distracting from actual proposals to help libraries continue their important work in the digital age, such as updates to the library and copyright provisions in the Copyright Act. The U.S. Copyright office has long supported such updates.
Internet Archive would have you believe that scanning hard-copy books without permission and “lending” digital versions is some sort of innovative transformation covered by copyright law’s fair use exception. This could not be further from the truth. Fair use is an important safety valve to copyright, but it does not permit—nor has it ever permitted—wholesale copying that directly competes with the market. The fact is, e-books already exist and are widely available in the market and through public libraries. Internet Archive isn’t creating something new; it’s just cutting authors and publishers out of the picture. There is nothing innovative or creative about what Internet Archive is doing, unless you count the scale of its program and the audacity of its fair use claims as a creative spin on traditional theft. The Second Circuit Court addressed this issue in 2015, stating, “An author’s right to control and profit from the dissemination of her work ought not to be evaded by conversion of the work into a different form.” This is not a gray area in the law.
Even more troubling, there is nothing limiting Internet Archive’s scheme to only books. The same ruse could be applied to all types of creative works: music, films, photographs, video games, and more. The result would eviscerate copyright law and upend the legal framework that supports and protects the livelihoods of artists, authors, editors, musicians, and everyone who works in creative industries. The ultimate victim in this scenario is the public, who would be deprived of the creativity and innovation that copyright law encourages.
And what’s at risk? Copyright’s massive contribution to the national economy, which includes six million jobs in the industries that produce books, motion pictures, music, software, newspapers, and magazines, and more than $1.5 trillion in annual value to U.S. GDP.
If Internet Archive truly believes books are so important, it should support the authors and publishers that make books possible, not undermine them. It’s time to end this blatant theft. It’s time for Internet Archive to stop stealing from authors and publishers.
Keith Kupferschmid is CEO of the Copyright Alliance.
