The Internet Archive will file an appeal against an unfair decision that ignores the value of the libraries’ work
The Internet Archive is a non-profit organization that maintains the Open Library, a digital library index, and is dedicated to preserving knowledge. As many of the works in the Internet Archive are under copyright, the Archive uses a system of controlled digital lending based on digital rights management to prevent unauthorized downloading or copying of copyrighted books. In March 2020, due to the circumstances surrounding the COVID-19 pandemic, the Internet Archive established the National Emergency Library, eliminating the waiting lists used in the Open Library and expanding access to books for all readers. In June 2020, the Emergency National Library faced a lawsuit from four book publishers and was ultimately closed.
Hachette Book Group, Inc. v. Internet Archive is a case in which the United States District Court for the Southern District of New York found that the Internet Archive, by scanning and distributing copies of books online in the frame of the Open Library committed copyright infringement. The matter concerns the fair use of controlled digital lending systems.
Controlled digital lending is a model by which libraries digitize material from their collection and make it available for lending.
Proponents argue that controlled digital lending complies with fair use doctrine because it relies on digital rights management, which ensures that any digitized work under copyright owned by the library is lended for a limited period of time, and maintains a one-to-one relationship between the library’s own copies and users. Opponents criticize this interpretation, arguing that controlled digital lending includes copying rather than just lending, and that the purchase of a physical book does not give libraries the right to digitize and lend it or to distribute its digital copies.
In the judgement, against which the Internet Archive has already announced an appeal, the court rejected the legal basis the Archive cited for its work and found that it did not take into account the four factors of fair use that derive from the copyright law of the United States of America.
It is clear from the judgement that the court takes a very narrow approach regarding the legal basis for the digital lending of books by libraries and does not take into account all the factors that are at play in the digital lending market. It is also evident that it prioritizes the payment of compensation to rights holders over all other benefits that are as equally important in our society.
Unfortunately, the court’s decision does not pay attention to the value of libraries in the context of ensuring users’ access to education, research and cultural engagement, and although the court’s decision is regrettable, it is not relevant for Europe, where secure forms of digital lending can be carried out on a special legal basis.
You can read more about the case on the Knowledge Rights 21 website.
Maja Bogataj Jančič has been invited as a representative of the Open Data and Intellectual Property Institute to attend the User Rights Network and Library Copyright Alliance meetings in Washington DC.
On 18 May 2023, a meeting on the protection of user rights against contract override will be held in Washington DC.
IPI will participate as a member of the Network of Centers on 18 May 2023 in Boston.
GPAI is co-organising workshops with the Max Planck Institute for Innovation and Competition and Duke University.