The battle lines have now been drawn in a potentially landmark lawsuit over the scanning and lending of books. In a motion for summary judgment filed this week, lawyers for Hachette, HarperCollins, Wiley, and Penguin Random House argue that the Internet Archive's controversial program to scan and lend books under an untested legal theory known as "controlled digital lending" is a massive piracy operation "masquerading as a not-for-profit library." And in a dueling motion for summary judgment, the Internet Archive counters that its scanning and lending program does not harm authors and publishers and is a public good protected by fair use.

The filings come more than two years after the publishers, organized by the Association of American Publishers, first filed its copyright infringement lawsuit in the Southern District of New York.

While publishers and authors groups had long been troubled by the IA's program, tensions came to a head in late March 2020 when the IA rattled publishers and authors by unilaterally launching its now shuttered National Emergency Library initiative, which temporarily removed the "one copy/one user" restrictions on its collection of in-copyright scans, making them available to multiple simultaneous users in the wake of the Covid-19 outbreak. In filing suit, the publishers made clear the suit was about more than the NEL, characterizing the IA's scanning program as an attempt “to bludgeon the legal framework that governs copyright investments and transactions in the modern world.”

In its motion for summary judgment this week, lawyers for the publishers argued that the IA's scanning program is clearly illegal.

“Masquerading as a not-for-profit library, the Internet Archive digitizes in-copyright print books on an industrial scale and distributes full-text digital bootlegs for free,” the publishers' brief states, pointing out that the IA “has amassed a collection of more than three million unauthorized in-copyright e-books, including more than 33,000 of the Publishers’ commercially available titles, without obtaining licenses to do so or paying the rightsholders a cent” for the works. “No case has held or even suggested that IA’s conduct is a lawful fair use.”

The publishers also insist that the practice of “controlled digital lending” has no basis in law, and that the IA in fact “helped manufacture” the legal theory to justify its infringement.

Masquerading as a not-for-profit library, the Internet Archive digitizes in-copyright print books on an industrial scale and distributes full-text digital bootlegs for free.

“Directly contradicting the idea that copyright protects a bundle of divisible rights, IA posits that it is lawful for a library to make digital copies of any print book it acquires and distribute that digital copy over the internet, without a license, as long as (a) the library uses digital rights management (“DRM”) technology to prevent additional copying, and (b) the library 'only loan[s] simultaneously the number of [print] copies that it has legitimately acquired,'” the brief states. “Regardless of whether it actually complies with CDL—and it does not—Internet Archive’s practice of CDL violates fundamental principles of copyright law, and undermines market incentives necessary to spur the creation of new works.”

Backed by reams of supporting documentation and supporting statements, the publishers portray the commercial library e-book market as robust and growing—and fundamentally threatened by the IA’s efforts to create its own unauthorized e-book editions.

“[It] cannot be plausibly disputed that IA’s e-books are free substitutes that compete with authorized e-books and thereby cause potential market harm to Plaintiffs, including the 'lending' fees IA refuses to pay and market substitution for library and retail e-book sales,” the brief states. “These harms would be disastrously compounded if IA’s activities became unrestricted and widespread."

In its motion for summary judgment, Internet Archive attorneys argue that its efforts are legal and protected by fair use. "The Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves," the brief reads. "They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world."

CDL is "fundamentally the same as traditional library lending," IA lawyers go on to argue. "Because every book in the Internet Archive’s print collection has already been bought and paid for, everyone agrees the Internet Archive could loan those books by handing or mailing them to a patron. The only difference is that the Internet Archive is loaning the books over the Internet. Either way, the books on loan are not available to other patrons until they are returned."

IA lawyers insist they are simply seeking to replicate the fundamental work of libraries in the physical world in the digital realm, work IA lawyers say is threatened in a digital market in which many publishers do not sell works to libraries but offer only limited, licensed access. "Internet Archive purchases e-books from other publishers who are willing to sell them outright and would purchase e-books from Plaintiffs if they were willing to sell them," the brief argues. "However, Plaintiffs have declined each time Internet Archive has asked over the years."

Against this backdrop, IA's CDL program was carefully considered to comply with copyright, IA lawyers argue, adding that the publishers are the party seeking to expand their control. "What the publishers who have coordinated to bring this lawsuit hope to obtain from this Court is not protection from harm to their existing rights. Instead, they seek a new right foreign to American copyright law: the right to control how libraries lend books. Such an outcome would disrupt libraries’ longstanding right to lend the books they own and their ability to preserve and share much of our cultural heritage in digital form," the IA brief states.

The lawsuit comes nearly a decade after the courts found Google's scanning of print books to create an online index was protected by fair use. The twist in this case is that the books being scanned by the Internet Archive are not being read by machines seeking to make books discoverable, but by people. Nonprofit or not, publishers and authors groups say the IA's program is a bridge too far.

"We hope and expect that the court will uphold established legal precedent," said AAP president and CEO Maria Pallante in a statement, "including by recognizing that formats are neither fungible nor free for the taking, but rather a key means by which authors and publishers exercise their copyright interests, develop new markets, and contribute to public progress.”