Sadly, the Internet Archive (IA) lost its legal appeal against Hachette Book early this week. The Internet Archive losing the lawsuit could see the whole web get into a tangle. Hachette sued the Internet Archive over its project through which the digital library scanned a single book and lent infinite digital or virtual copies to its readers. Hachette and other publishers argued this was equivalent to piracy.
I did not think the Internet Archive would win the appeal, but I secretly hoped it would. Regardless, the loss of the appeal is a sad day for readers, especially for students, researchers, and even for some of the writers who want or need to access many rare, out-of-print, or even inaccessible reading materials due to geographical limitations, and the Internet Archive had provided them with a solution.
Since 2020, the Internet Archive has been involved in this litigation that holds important implications for the future of controlled digital lending (CDL) and the future of publishing. It impacts the readers all over the world as well. CDL is a method and legal theory whereby libraries (both brick & mortar and virtual) can lend digital copies of books and magazines in their physical collections, expanding their ability to serve their readers beyond those who can be physically present in those libraries. However, because this kind of lending involves making and distributing copies of books, especially producing eBooks and PDF copies, it raises complex questions under copyright law, which possibly needs a debate and a permanent redressal.
The Internet Archive operated its digital lending program for years without running into legal troubles. In collaboration with the Open Library of Richmond, Internet Archive bought or received donations of thousands of books, scanned them, stored the print copies in shipping containers, and loaned digital copies of those books to people on the web. But, like the rest of the world, things changed in 2020 because of Covid-19. In 2020, when libraries across the world were trying to figure out how to provide access to their collections and were concerned about the distribution of physical materials because of disease transmission, the Internet Archive opened its “National Emergency Library”. With the National Emergency Library, the Internet Archive removed the “owned to loaned” restriction from its digital lending platform and opened up the availability of its collection to the public. In practice, this meant that thousands of people could borrow the same book from the Internet Archive at the same time, even if the Internet Archive only owned a single copy in its digital lending platform. They virtually opened up the availability of their collection to the public.
This move had upset several book publishers, who filed a lawsuit against the Internet Archive in the Southern District of New York in June 2020. The Internet Archive closed the National Emergency Library on 16 June 2020, and after three years of litigation, the publishers prevailed. The court fully rejected the Internet Archive’s argument that fair use protected its digital lending program. Notably, it did not limit its analysis to the National Emergency Library. Instead, the court rejected fair use as it applies to controlled digital lending in general. The Internet Archive appealed and submitted its opening brief to the Court of Appeals for the second circuit on 15 December 2023.
Though I am very fond of the Internet Archive, we cannot possibly ignore the fact that they made a serious error of judgement by probably violating the agreements of Controlled Digital Lending -which is a violation of copyright law. However, I think that Hachette Book’s approach to this situation portrays another extreme. Publishers seem to be more concerned about money than anything else. By no means I am supporting piracy, but in this situation, I feel that the action against the Internet Archive was harsh.
It was during the global pandemic which took away access to education for many people that the Internet Archive was trying to restore by being helpful to the readers by allowing people around the world to have virtual and digital access to knowledge when they needed it most. The Internet Archive is a non-profit organisation, and I suppose they did not make a profit from sharing these digital copies of the books. However, the big publishers argue that the Internet Archive’s approach wasn’t right since it was legally unfair.
Even though the Internet Archive made that mistake, I think that the decision to remove 500,000 books from the Internet Archive’s library was very sad, because the regular physical libraries around the world compliant with the CDL also lend out as many copies as they have in their catalogues to readers.
Overall, it is a huge mess. On one hand, the Internet Archive violated a section of the existing copyright law and there is no way of denying that. However, I felt that the craziness and incongruity of the pandemic-stricken-globe would broaden our horizon of world-view and the Internet Archive’s act would fall under fair use since they had no intention of making a financial gain and profit and wanted to help mankind in their quest for knowledge.
I think that both parties handled the situation incorrectly, but I tend to support the view that the Internet Archive shouldn’t be harshly treated since it was a global crisis that negatively affected everyone and they just wanted to help the readers. However, the contrary view is also to be considered that unlimited lending, without some kind of legal mandate enabling that, was not a wise choice. The Internet Archive, I do not think, had asked for the required permissions from the publishers where they were necessary. They just went ahead with lending the digital books, and hoped they’d get away with it thanks to the pandemic. The Internet Archive was on shaky legal ground by not buying legitimate and legal eBook licences from the publishers to lend, and instead, scanned those books to PDF, then uploading non-proofread conversions to more popular mobile formats like ePub.
I love Internet Archive’s ‘Open Library’ programme for out-of-print, rare, hard-to-find books, as well as the beyond-copyright books when I need to reference them. But as a writer, I have always thought that uploading current, in-print books protected by copyright law is a bit adventurous.
In the end, this legal wrangle is bad for readers everywhere and we need to find a more permanent solution to it.
The author is a writer and a columnist. Opinions expressed are his personal views.