During a 30-minute Zoom press conference on July 22, Internet Archive founder Brewster Kahle urged the four major publishers suing over the organization’s book scanning efforts to consider settling the dispute in the boardroom rather than the courtroom.
“Librarians, publishers, authors, all of us should be working together during this pandemic to help teachers, parents, and especially students,” Kahle implored. “I call on the executives of Hachette, HarperCollins, Wiley, and Penguin Random House to come together with us to help solve the challenging problems of access to knowledge during this pandemic, and to please drop this needless lawsuit.”
Kahle’s remarks came as part of a panel, which featured a range of speakers explaining and defending the practice of Controlled Digital Lending (CDL), the legal theory under which the Internet Archive has scanned and is making available for borrowing a library of some 1.4 million mostly 20th century books.
“Please remember what libraries do: we buy, preserve, and lend books,” Kahle said. “Controlled Digital Lending is a respectful, balanced way to bring our print collections to digital learners,” he added, pointing out that once a physical book is digitized, it is only available one reader at a time. In addition, the scan and the print book are not allowed to circulate at the same time. “Controlled Digital Lending is a longstanding and widespread library practice,” Kahle suggested, adding that the Internet Archive’s Open Library program has been around for nine years.
But the practice of CDL has long rankled author and publisher groups—and 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. On June 1, Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House filed a copyright infringement lawsuit in the U.S. District Court for the Southern District of New York.
In a press release announcing the suit, executives at the Association of American Publishers said the Internet Archive’s scanning program was not a public service, but an attempt “to bludgeon the legal framework that governs copyright investments and transactions in the modern world,” and compared it to the “largest known book pirate sites in the world.” In a separate statement, Authors Guild president Douglas Preston said the IA 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.”
Asked this week about Kahle's call for the publishers to drop the litigation and work with the Internet Archive, a spokesperson for Association of American Publishers, which is coordinating the publishers' lawsuit, dismissed the idea. "The IA uses its considerable resources to conduct and promote willful copyright infringement on a massive scale", AAP spokesperson John McKay said. "IA’s infringements, which are extensive and well-documented, are now appropriately before the court.”
But in his brief remarks on Wednesday, Kahle said it is the work of libraries that is under threat in the digital age.
“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 a point of contention for more than a decade. Currently, public libraries can only license trade e-books on a temporary basis—generally two years, or for a designated number of lends, and at prices that can often run 3-5 times higher than the consumer price. Many titles are not available in digital editions to libraries at all. Internet Archive officials also point out that their low-quality scans are not suited for immersive reading and do not compete with the commercial library e-book market, which has surged over the last decade, and particularly since the pandemic.
With the Internet Archive’s reply to the publishers’ lawsuit due on July 28, there was only brief talk of the litigation.
“I can’t get into the legal strategies on this call, but the Internet Archive’s legal position is straightforward,” said Electronic Frontier Foundation legal director Corynne McSherry, part of the Internet Archive’s defense team. “CDL is sheltered by copyright’s fair use doctrine as well as other time-honored limits and exceptions. In fact, the project serves a classic fair use purpose: public interest and preservation, access, and research. And, more generally, creating obstacles to the right to lend and borrow books just doesn’t serve the purposes of copyright. It doesn’t serve authors, it doesn’t serve publishers, and it certainly doesn’t serve the public. We expect the court will agree.”
This story has been updated.
