After nearly three years of legal wrangling, a federal judge today will hear cross motions for summary judgment in a closely watched lawsuit challenging the legality of the Internet Archive's program to scan and lend print library books.
First filed in New York on June 1, 2020, by four major publishers (Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House) and the Association of American Publishers, the copyright infringement lawsuit alleges that the Internet Archive’s scanning and lending of library books under an untested legal theory known as "controlled digital lending" is piracy on an industrial scale. The Internet Archive counters that it's activities are legal, protected by fair use, and that the publishers' action fundamentally threatens the core mission of libraries to own and lend collections in the digital age.
The wheels of the lawsuit first began to turn in late March 2020, in the early days of Covid-19 pandemic, when, with libraries and schools shuttered, the Internet Archive unilaterally launched the National Emergency Library, a program that temporarily removed controls on the scanned titles in the IA's Open Library, making them available for multiple user borrowing. The move sparked outrage from author and publisher groups.
The suit, however, is about about more than the National Emergency Library (which shuttered in early June 2020, in the wake of the litigation). Rather, the suit challenges the legitimacy of controlled digital lending and the fundamental legality of scanning and lending library books without permission.
Under CDL, libraries (including the Internet Archive) make scans of their legally acquired physical books and loan the scans in lieu of the print under rules that mimic physical lending: only one person can borrow a scan at a time; the scans are DRM-protected; and only one format can circulate at a time to maintain a one-to-one “owned-to-loan” ratio. In other words, if the scan is checked out, its print counterpart cannot circulate, and vice versa.
In their third and final summary judgment brief, filed last October, attorneys for the publishers reiterate their position that, on both the facts and the law, there is no viable fair use defense for the Internet Archive’s massive scanning and lending program, labeling the Internet Archive a "commercial" actor and CDL “a cynical branding exercise" designed to legitimize "industrial-scale" copyright infringement.
“In the end, Internet Archive asks this Court to adopt a radical proposition that would turn copyright law upside down by allowing IA to convert millions of physical books into e-book formats and distribute them worldwide without paying rights holders,” the publisher brief states. “Since the purpose of copyright is to incentivize the creation of new works, authors and publishers—not IA—hold the exclusive right to publish their books in all formats and distribute them via select channels.”
In their third and final summary judgment brief, Internet Archive lawyers reiterate their arguments that their scanning and lending program is fair use—and that the evidence will show no harm to the publishers market.
“All CDL does, and all it can ever do, is offer a limited, digital alternative to physically handing a book to a patron. Libraries deciding how to meet their patrons’ needs for digital access to books are not making a choice between paying e-book licensing fees or getting books for free. Libraries pay publishers under either approach,” the IA brief states. But with CDL as an option, “librarians can continue to maintain permanent collections of books, to preserve those books in their original form for future generations, and to lend them to patrons one at time, as they have always done,” the brief adds.
If neither side prevails at the summary judgment stage, the case will head to trial. But lawyers tell PW the case very likely will be decided at the summary judgment stage, as there are few factual disputes at issue in the case. Barring a surprise settlement, however, the case is likely far from over, as the outcome of today's hearing, whichever way it goes, would likely be appealed.
An archive of PW's extensive coverage of the case can accessed here.