Is the Internet Archive's program to scan and lend copies of print library books under an untested legal theory known as controlled digital lending (CDL) wholesale piracy? Or is it a carefully considered and legal effort to preserve the mission of libraries in a digital world that is moving away from ownership to licensed access? With Summary Judgment motions now filed in a closely-watched lawsuit filed by four major publishers over the Internet Archive's scanning program, stakeholders on both sides of the case are weighing in with amicus briefs.
Briefs In Support of the Publishers
Amicus from the Copyright Alliance: "While Defendant cloaks its unauthorized scanning and distribution of books as serving the public good, there is no legal support for its practice under copyright law, and the consequences of its activity will cause long-term harm to the creation of new works that enrich our culture. Defendant’s practice of wholesale scanning of physical works does not fit within the bounds of fair use because the works created by this practice serve the exact same purpose as the works they infringe. Nor does the first-sale doctrine under section 109 support Defendant’s position, as the doctrine does not permit a physical work to be digitized and distributed...Likewise, the limited reproduction rights granted to libraries and archives under section 108 does not cover Defendant’s wholesale copying and digital distributions. Defendant’s pursuit of its own policy objectives does not justify its blatant disregard of the plain language of the [Copyright] Act and related caselaw."
Amicus from the Authors Guild and 22 Additional Writer/Artist Organizations: "If the Open Library’s practices are found legal, any website calling itself a library could digitize or copy any in-copyright creative works and “lend” out copies, including in a manner that actually downloads the copies on users’ computers. This will gut copyright law and, as a result, will greatly diminish our country’s literary and other creative output. IA’s policy arguments regarding these statutory provisions must in any event be addressed to Congress, not to this Court."
Amicus from 13 Copyright Scholars: "CDL is not a fair use or an implementation of legitimate first sale rights (or any combination of the two), but a unilateral attempt fundamentally to change copyright law. This Court should not indulge IA and IA amici’s effort to dispense with the legislative process and enact a self-declared exception from the requirements of the Copyright Act."
Amicus from International Publisher Organizations: "Internet Archive's purported 'lending' of eBooks squarely infringes exclusive rights of the Plaintiffs defined and set out in international copyright law. The facts relied on by IA in support of a defense of fair use to justify such infringement, including its contrived system of “controlled digital lending,” do not meet the minimum standard for protection as defined by international treaties. U.S. courts are required to apply the defense of fair use in a manner that satisfies the required standards established by international copyright and related rights treaties described infra, and any exception that purports to enable IA’s copying and making available of protected eBooks worldwide on an immense scale fails to do so. The international copyright and related rights framework prohibits the U.S. from establishing exceptions to exclusive rights that do not meet those standards."
Briefs In Support of the Internet Archive
Amicus from Library Futures Institute, EveryLibrary Institute, and ReadersFirst: "Library practices reflect a commitment to both the economic and access goals of copyright: purchasing books from publishers, vendors, and authors; adding them to collections; and establishing loaning programs to provide equitable access to the copyrighted content that is legally purchased or acquired. Controlled Digital Lending (CDL) replicates the carefully protected balance encapsulated in one of the core functions of the library mission: loaning legally acquired books... CDL is a feature of ownership, not a substitute for licensing. It is not intended to replace or circumvent a library’s existing eBook holdings, but it can serve as a powerful tool for bridging the gap between print and electronic resources for readers and researchers."
Amicus from the Authors Alliance: "Authors Alliance has an interest in this case because our members rely heavily on libraries such as the Internet Archive, both to make their own works available to readers and to access other literary works for their own research. We think it reasonable and expected that libraries will implement systems—such as Controlled Digital Lending—to adapt how they lend books in light of current technology, and to ensure that authors reach readers. A negative ruling in this case on the legality of CDL would severely restrict the reach and impact of our work."
Amicus from 17 copyright scholars, submitted by Jason Schultz, Technology Law & Policy Clinic at NYU School of Law: "As digital delivery has grown more common, and in some cases essential, libraries have adapted by lending materials to patrons using new technologies and formats. Plaintiffs’ lawsuit threatens this core function, insisting that digital library lending be outlawed unless the plaintiffs control how, where, to whom, and at what price it occurs. Such a drastic shift in who controls library lending would fundamentally change not only how libraries work but also their relationships with their patrons and collections in the digital era."
Amicus from 14 intellectual Property law professors, submitted by Rebecca Tushnet, Harvard Law School: "Improving access is important because democracy requires more than democratically elected rulers; it requires informed democratic culture and knowledge. Freedom to participate in public life requires the resources to participate and the freedom to debate and disagree about meaning of shared culture. And this requires robust nonprofit institutions providing access to the basic elements of culture... Users of the Internet Archive are simply unlikely to be paying customers even if the Internet Archive were unavailable, and so the existence of market harm needs to be proven. For similar reasons, including the constraints of institutional budgets and libraries’ incentives to offer as broad a range of resources as possible, the hypothesis that institutions would be taking more licenses in the absence of the Internet Archive is unpersuasive."
Amicus from law professor and librarian Michelle M. Wu, recognized as the "originator" of CDL principles: "This Court should not adopt Plaintiffs’ overbroad attack on CDL. Whatever decision this Court reaches on the particular facts of these plaintiffs against this defendant’s particular CDL program, CDL has many different expressions and applications in libraries all over the United States, serving a diverse set of interests including publishers, authors, users, and libraries themselves. Plaintiffs flatten these distinctions, treating CDL as a monolithic bad and themselves as the monolithic representatives of the interests of copyright holders, when they represent only one profit-focused perspective in the equitable considerations of copyright law."
Amicus from law professor Kenneth Crews and Univ. of Kansas librarian Kevin Smith: "In the modern era, libraries bear a unique responsibility to provide quality information to the public. No other institution offers so much information, so freely, to so many. Private companies (including publishers) play an important role in producing new informational resources. Understandably, however, they are driven by market forces and not by the well-being of society as a whole. Libraries safeguard the public’s ability to pursue diverse and varied inquiry and to learn freely in ways that may be impinged if control over the dissemination of digital materials is dictated exclusively by private interests. Against this backdrop, CDL is but the latest effort by libraries to 'promote the kind of discourse that makes democracy possible.'”