In a July 28 filing, the Internet Archive answered a copyright infringement lawsuit filed by four major publishers, asserting that its long-running book scanning and lending program is designed to fulfill the role of a traditional library in the digital age, and is protected by fair use.
"The Internet Archive does what libraries have always done: buy, collect, preserve, and share our common culture," reads the IA's preliminary statement to its answer, contending that its collection of roughly 1.3 million scans of mostly 20th century books, many of which are out of print, is a good faith and legal effort to "mirror traditional library lending online" via a process called Controlled Digital Lending (CDL).
"Contrary to the publishers’ accusations, the Internet Archive, and the hundreds of libraries and archives that support it, are not pirates or thieves," the filing states. "They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world. Copyright law does not stand in the way of libraries’ right to lend, and patrons’ right to borrow, the books that libraries own."
The IA's answer comes in response to a June 1 copyright infringement lawsuit filed in the Southern District of New York by Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House, and coordinated by the Association of American Publishers.
In announcing the suit, executives at the Association of American Publishers characterized the Internet Archive’s scanning and lending of library books as an attempt “to bludgeon the legal framework that governs copyright investments and transactions in the modern world,” and compared its efforts to the “largest known book pirate sites in the world.” In a supporting statement, Authors Guild president Douglas Preston said the IA's program was “no different than heaving a brick through a grocery store window and handing out the food—and then congratulating itself for providing a public service.”
The practice of CDL has troubled author and publisher groups for years, but those tensions came to a head in late March when the IA unilaterally announced its now closed National Emergency Library initiative, which temporarily removed access restrictions for its scans of books, making the books available for multiple users to borrow during the Covid-19 outbreak. In its suit, the publishers make clear they are not suing the IA over “the occasional transmission of a title under appropriately limited circumstances, nor about anything permissioned or in the public domain,” but rather over the IA's “purposeful collection of truckloads of in-copyright books to scan, reproduce, and then distribute digital bootleg versions online.”
In its 28-page answer this week, IA lawyers denied many of the claims and characterizations made in the publishers' lawsuit.
"The Internet Archive has made careful efforts to ensure its uses are lawful," IA lawyers state, contending that its CDL program is "sheltered by the fair use doctrine," and "buttressed" by traditional library practices and protections. "Specifically, the project serves the public interest in preservation, access and research—all classic fair use purposes. Every book in the collection has already been published and most are out of print. Patrons can borrow and read entire volumes, to be sure, but that is what it means to check a book out from a library. As for its effect on the market for the works in question, the books have already been bought and paid for by the libraries that own them. The public derives tremendous benefit from the program, and rights holders will gain nothing if the public is deprived of this resource."
Under CDL, the Internet Archive and other libraries make and lend out digital scans of physical books in their collections. For non-public domain titles, IA lawyers say the site functions like a traditional library: only one person can borrow a scanned copy at a time; the scans are DRM-protected; and the corresponding print book the scan is derived from is taken out of circulation while the scan is on loan to maintain a one-to-one "own-to-loan" basis. In addition, the Internet Archive says it removes scans from the collection at the request of the copyright holder, pointing out that all of the 127 books listed as infringing in an appendix to the publishers' suit have been been removed.
The IA's answer to the suit comes days after Internet Archive founder Brewster Kahle, in a July 22 Zoom press conference, urged the publishers to drop the suit and settle the dispute in the boardroom, rather than the courtroom.
“With this suit, the publishers are saying in the digital world, [libraries] cannot buy books anymore. We can only license them, and under their terms. We can only preserve them in ways that they have granted explicit permission for, and only for as long as they’ve given permission. And, we cannot lend what we’ve paid for, because we don’t own it. It’s not the rule of law, it is the rule of license. It doesn’t make sense,” Kahle said. “We say that libraries have the right to buy books and preserve them and lend them even in the digital world.”
Indeed, the library e-book market has been marked by tension for more than a decade. Currently, public libraries are allowed to license most trade e-books on a temporary basis only—generally two years, or for a designated number of lends, and at prices that can often run significantly higher than the consumer price. Many titles are not available in digital editions to libraries at all. Internet Archive officials have also pointed out that their low-quality scans are not suited for immersive reading and say there is evidence they do not compete with the commercial library e-book market, which has surged over the last decade, and particularly since the pandemic.
A spokesperson for the AAP dismissed Kahle's proposal to talk things out last week. "[The Internet Archive’s] infringements, which are extensive and well-documented, are now appropriately before the court," AAP spokesperson John McKay said in a statement.