Citing a copyright infringement lawsuit filed by publishers, Internet Archive founder Brewster Kahle announced this week that the IA’s National Emergency Library initiative will cease operating on June 16, two weeks earlier than its previously announced June 30 closing date.
“We moved up our schedule because, last Monday, four commercial publishers chose to sue Internet Archive during a global pandemic,” Kahle wrote in a blog post published this week. “However, this lawsuit is not just about the temporary National Emergency Library. The complaint attacks the concept of any library owning and lending digital books, challenging the very idea of what a library is in the digital world."
Currently, most trade publishers license e-books to publishers only on limited terms—generally two years of access or 52 lends whichever comes first, before the title must be relicensed—which librarians say inhibits their ability to build digital collections for the public. In addition, a number of older titles don't have digital editions, librarians add, and are not likely to get a commercial digital edition because the works have no commercial appeal, or their rights situations are unclear.
The Internet Archive announced the National Emergency Library project on March 24, in response to the widespread closures of libraries and schools during the Covid-19 crisis. The temporary initiative unilaterally removed the usual one copy/one user restriction on scans borrowed from the Internet Archive’s Open Library project, allowing unlimited borrowing of the roughly 1.4 million titles scanned, unless an author or publisher opted out. The NEL was set to last until June 30, or until the crisis is over.
After some positive initial headlines, the NEL drew strong rebukes from some individual authors and publishers, as well as accusations from trade associations, including the Association of American Publishers, which accused the Archive of an "opportunistic attack on the rights of authors and publishers."
On June 1, the Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House, in coordination with the AAP, filed a lawsuit in the U.S. District Court for the Southern District of New York accusing the Internet Archive of massive copyright infringement in connection with its book scanning program. The suit asks the court to issue preliminary and permanent injunctions to prevent the IA from scanning, displaying, and distributing literary works in connection with its Open Library and National Emergency Library efforts.
While the NEL will end on June 16, Kahle said in the post that the Internet Archive will continue to operate the Open Library, lending scans of print library books on a one copy/one user model under an untested legal theory known as "controlled digital Lending." Under the controlled digital lending theory, a library or a nonprofit, like the Internet Archive scans a print copy of a book they have legally acquired, then makes the scan available to be borrowed in lieu of the print book, using a DRM-protected one user/one copy model, while, crucially, taking the corresponding print book out of circulation while the digital copy is on loan, or vice versa, maintaining a "one to one owned to loaned" ratio.
But publishers and authors have for years expressed outrage over the practice of controlled digital lending, and in their June 1 complaint the plaintiff publishers called it an "invented" theory with no basis in law. "No concept of fair use supports the systematic mass copying or distribution of entire books for the purpose of mass reading, or put another way, for the purpose of providing to readers the very thing that publishers and authors provide in the first place through lawful and established channels," the publisher suit alleges.
In his blog post this week, however, Kahle defended the practice.
"Controlled digital lending is how many libraries have been providing access to digitized books for nine years," Kahle explained in the post. "The digitized book is protected by the same digital protections that publishers use for the digital offerings on their own sites. Many libraries, including the Internet Archive, have adopted this system since 2011 to leverage their investments in older print books in an increasingly digital world."