Internet Archive Files Appeal in Publishers’ Lawsuit Against Libraries | Internet Archive Blogs

“Today, the Internet Archive has submitted its appeal [PDF] in Hachette v. Internet Archive. As we stated when the decision was handed down in March, we believe the lower court made errors in facts and law, so we are fighting on in the face of great challenges. We know this won’t be easy, but it’s a necessary fight if we want library collections to survive in the digital age.

Statement from Brewster Kahle, founder and digital librarian of the Internet Archive:
“Libraries are under attack like never before. The core values and library functions of preservation and access, equal opportunity, and universal education are being threatened by book bans, budget cuts, onerous licensing schemes, and now by this harmful lawsuit. We are counting on the appellate judges to support libraries and our longstanding and widespread library practices in the digital age. Now is the time to stand up for libraries.”

We will share more information about the appeal as it progresses….”

A study on copyright issues of different controlled digital lending (CDL) modes – Ying Wang, Tomas A. Lipinski, 2023

Abstract:  In the recent years, CDL has been heatedly talked about, CDL should be treated objectively and rationally. Getting knowledge of CDL modes and their copyright issues is critical for sustainable development of CDL. Rather than CDL becomes a transient phenomenon as a result of many copyright hurdles. The paper will explore CDL modes by combing CDL practices and programs from research papers and official website documents of different library organizations. Then, based on legal frameworks of CDL in the US, Canada and the UK which are summarized, copyright issues of CDL modes are analyzed from perspectives of implementing institution, service resources, and usage mode. Finally, some copyright recommendations for sustainable development of CDL are proposed. We believe that library institutions can use CDL to advance their crucial mission for the public’s interest through making sense of different CDL modes and their copyright issues and implementing some proposals about copyright processing.



A Book Is a Book Is a Book—Except When It’s an e-Book | The Nation

“Publishers can’t demand more money for the paper books you’ve already bought, but the technology for copying and distributing books has evolved a lot since 1909. So four titanic corporate publishers are currently in court, insisting on the effective right to barge in and demand multiple, recurring payments for digital books–like they do for digital movies, music, and software–and they want to exercise that same power over the books in libraries. 


This threat to the ownership of books is what makes the ongoing publishers’ lawsuit against the Internet Archive politically dangerous, and in an altogether different way from earlier challenges and amendments to copyright law. At a time of increasing book bannings and attacks on libraries, public schools and universities, it is not safe for democracy, or for our cultural posterity, to leave an “on/off” switch for library books in the hands of corporate publishers….”

Reclaiming Control: The Internet Archive Empowers People. Gatekeepers Keep Suing

As a child, nothing warmed me more than my mother’s “Three C’s Soup”: Cabbage, Carrot, Carraway from Jane Brody’s Good Food Book: Living the High Carbohydrate Way (published in 1980 and still in print, no ebook version has yet been licensed). And when my mother died in late fall 2018, there was nothing I wanted to cook more, but her copy had gone missing. 

I could have called the library and asked them to read me the recipe, or to scan it and to send it to me, but my library had a later print edition of the book. I could have bought a used copy of the 1980 edition, which I eventually did, but I wanted to cook it that day. So instead, I went to Open Library, the Internet Archive’s Controlled Digital Lending program, and borrowed the book for an hour, returning it when the soup was finished. In the words of my mother’s favorite literary character, the Mock Turtle: It was beautiful soup. 

About a year and a half later, the Internet Archive was sued for providing books in this manner to the public. The suit was triggered by a short-lived, well meaning program that made books available to students during a dark part of the pandemic by lifting certain restrictions on how many people at a time could borrow a given library title. That lawsuit just came to a judgment, ordering the Archive to take down a part of their collection and striking a blow to Controlled Digital Lending more generally, though the Archive will appeal.

To be clear: what the Internet Archive is doing is traditional library lending in a digital form, and frankly not radical – I can just get access to the materials I want much more quickly through the Archive, but I must also return them much more quickly. There is no situation in which acquiring a recipe from an obsolete edition of Brody’s first cookbook with no ebook equivalent would hurt her royalties. Libraries have traditionally bought one copy of a book and then lent it, much like they do with CDL, which maintains an “owned to loaned” ratio through sequestering materials. 

While big publishers would have you believe that people are flocking to the Internet Archive to borrow and read these scans for free rather than relying on the “thriving ebook licensing market for libraries,” they ignore a few crucial facts to advance a bad faith argument about market harm: the average time readers spend with an Internet Archive scan is under 30 minutes. People seem to be using these materials as intended: as reference, grabbing just the bit of information they need.

If someone wants to download and read an ebook outside of a streaming service or licensed copy, they are not going to use a scanned, DRM-protected epub that they can borrow from the Internet Archive for an hour. Authors, publishers, and musicians know this, and yet content rightsholders continue to litigate a nonprofit library at great expense to themselves and their authors. As the New York Times reports, even authors who were once critical of the Archive’s efforts have removed their initial statements. Author Malcolm Harris recently tweeted, “The Internet Archive was an invaluable resource when I was writing PALO ALTO and it pisses me off that Hachette sued in the name of their authors.” 

There are, of course, very real threats to authors and publishers: large download sites, censorship by legislators, “chokepoint” intermediaries, AI corporations gobbling up materials and selling them back to the public as new products, the general “enshittification” of platforms, the high overhead costs and venture capital ownership of streaming that has been predicted to collapse for nearly ten years, Overdrive’s monopoly in libraries, publishers’ resistance to reasonable contractual requests by authors, at-risk corporate archives, or Amazon’s stranglehold hold over the digital book and audiobook market. In pursuing this case (and a related case from the music industry), the litigants seek to distract artists from the very real conditions of labor that would start to fix a broken system but might cut into their bottom line: better contracts and a humane income, artistic independence and the freedom to publish, collaborations that inspire new creation, more control over their terms and payments, and less consolidation in the market.

Could copyright holders join together and rethink streaming and licensing in order to build a digital system that works for authors, small publishers, and artists, considering that five companies control at least 77% of the US best seller market and artists are struggling? Of course, but it wouldn’t provide the kind of surveillance of readers, data harvesting, and AI-written books that they hope will cut many authors out of the equation entirely. (Obviously no librarian wants any of the above.) Penalizing libraries providing scans of books and music largely for reference sets a precedent in a limited case that benefits no one.

Creators deserve more. As the SAG AFTRA strike has shown, large, organized communities can disrupt an entire industry by fighting for their rights. Rather than adopting a passive position against corporate overreach in the face of an digital licensing industry where one major company dominates up to 85% of the digital book market (Amazon) and another dominates up to 90% of the library lending market (Overdrive/Libby), we can come together and fight for fairer contracts, particularly when it comes to licensing rights and equitable downstream uses of work. And in my own community of librarians, we must stop infighting about whether we agree with the Archive’s position, or whether Controlled Digital Lending is legal or not. We have to work together to wrest power from the large corporations that dominate commercial publishing. The future of knowledge depends on it.

Judge Approves Final Injunction in Publishers, Internet Archive Copyright Case

“After more than three years of litigation, it took judge John G. Koeltl just hours to sign off on the parties’ negotiated consent judgment—but not without a final twist. In a short written opinion made public yesterday, Koeltl sided with the Internet Archive in a final dispute, limiting the scope of the permanent injunction to cover only the plaintiffs’ print books that also have electronic editions available.

In a letter to the court, lawyers for the plaintiff publishers had argued that the injunction should cover all the plaintiffs’ commercially available books, whether the books have digital editions or not. “The law is clear that the right to decide whether or not to publish a book in electronic format belongs to its authors and publishers, not IA,” the publishers’ letter argued. Furthermore, IA’s unauthorized digital editions create “clear potential market harm to the print book market,” the publisher letter claims, because a “straight, verbatim digital copy of the entire work is an obvious competing substitute for the original.”

In their letter to the court, IA attorneys argued that the injunction should be limited to the plaintiffs’ books that have digital editions available because that was what the suit addressed. “Because the parties did not have the opportunity in this case to litigate the degree to which the unavailability of digital library licensing would affect the fair use analysis, it is inappropriate for an injunction in this case, by its breadth, to effectively prejudge the outcome of that question,” IA attorneys argued.

Koeltl sided with the Internet Archive, holding that because the 127 works chosen for the suit were all commercially available works with digital editions, sweeping all the plaintiffs’ books into the final injunction risked being overbroad.”

Update: Consent Judgment in Hachette v. Internet Archive | Authors Alliance

“UPDATE: On Monday, August 14th, Judge Koeltl issued an order on the proposed judgement, which you can read here, and which this blog post has been updated to reflect. In his order, the judge adopted the definition of “Covered Book” suggested by the Internet Archive, limiting the permanent injunction subject to an appeal to only those books published by the four publisher plaintiffs that are available in ebook form.

After months of deadline extensions, there is finally news in Hachette Books v. Internet Archive, the case about whether Controlled Digital Lending is a fair use, which we have been covering since its inception over two years ago, and in which Authors Alliance filed an amicus brief in support of Internet Archive and CDL. On Friday, August 11th, attorneys for the Internet Archive and a group of publishers filed documents in federal court proposing “an appropriate procedure to determine the judgment to be entered in this case,” as Judge John G. Koeltl of the Southern District of New York requested.,,,:

Judgment Entered in Publishers, Internet Archive Copyright Case

“More than four months after a federal judge found the Internet Archive liable for copyright infringement for its program to scan and lend library books, the parties have delivered a negotiated agreement for a judgment to be entered in the case. But a final resolution in the case could still be many months, if not years, away, as Internet Archive officials have vowed to appeal.

The jointly proposed agreement includes a declaration that cements the key finding from Judge John G. Koeltl’s March 24 summary judgment decision: that the IA’s unauthorized scanning and lending of the 127 in-suit copyrighted books under a novel protocol known as “controlled digital lending” constitutes copyright infringement, including in the IA’s controversial “National Emergency Library” (under which the IA temporarily allowed for simultaneous access to its collections of scans in the the early days of the pandemic, when schools and libraries were shuttered)….”

Internet Archive’s Copyright Battle with Publishers Leads to Lending Restrictions * TorrentFreak

“The Internet Archive’s online book lending library will be severely limited to avoid copyright liability. The library and book publishers have agreed the terms of a judgment that leaves one crucial question open for the court. While restrictions are unavoidable, for now, the Internet Archive is eager to reverse the court’s liability ruling on appeal….”

The Internet Archive and leading book publishers find common ground in legal battle – Good e-Reader

“In a development that may mark a turning point in their legal dispute, the Internet Archive and a consortium of prominent book publishers have jointly informed a Manhattan federal court about their progress in resolving key aspects of their ongoing conflict concerning the Archive’s digital lending of scanned books, Reuters reported.

Pending acceptance, a consent judgment is poised to address several critical matters in the case, encompassing potential financial compensation and the extent of restrictions on the Archive’s lending practices. Importantly, the consent judgment holds the potential to pave the way for an appeal in response to U.S. District Judge John Koeltl’s previous ruling, which found that the Archive had infringed upon the publishers’ copyrights.

Under the proposed terms, the Archive would be obligated to make an undisclosed monetary payment to entities such as Lagardere SCA’s Hachette Book Group, News Corp’s HarperCollins Publishers, John Wiley & Sons, and Bertelsmann SE & Co’s Penguin Random House if the Archive’s appeal proves unsuccessful.

Additionally, the consent judgment would establish a permanent injunction preventing the Archive from lending copies of the publishers’ books without explicit permission while the appeal is pending. However, a point of contention remains as the parties urge Judge Koeltl to clarify whether this injunction exclusively pertains to books already available for electronic licensing or extends to books commercially accessible in any format….”

Book Publishers Are Trying to Destroy Public E-Book Access in Order to Increase Profits ? Current Affairs

“The publishers argued that the Internet Archive practices a form of “willful digital piracy on an industrial scale.” Judge Koeltl agreed, saying that although IA does not actually increase the number of books in circulation, “the Publishers hold exclusive publishing rights” and the IA “infringed the plaintiffs’ copyrights in 127 books (the “Works in Suit”) by scanning print copies … and lending the digital copies to users of the defendant’s website without the plaintiffs’ permission.” He says that they can only legally digitize books that are considered to be in the public domain,1 which would force them to remove more than 3.6  million copyrighted works currently on the site.  

Koeltl dismissed the Archive’s argument that their practices constitute “fair use,” which allows copying for criticism, comment, news reporting, teaching, scholarship, or research. To determine if a piece of content falls under fair use, judges consider nonprofit or educational purposes, transformation, and market effect. In his opinion, Koeltl gave lengthy explanations for why he believes IA is not fair use. Mike Masnick, the founder of Techdirt and one of the most prolific writers on fair use in the Internet age, gives Koeltl’s tortured logic the verbal flogging it deserves, arguing that the Archive’s lending is transformative, not for profit, and no more impactful to the market than the average library. But even setting aside the legal question of copyright infringement, we should still consider the destruction of the IA to be a bad thing for society. At bottom, this is a case of a cabal of powerful commercial interests using the legal system to bully a public organization that offers a superior service, completely for free, without stealing anything….”

Lecture: The Publisher Playbook Tickets, Thu, May 25, 2023 at 10:00 AM | Eventbrite

“Libraries have continuously evolved their ability to provide access to collections in innovative ways. Many of these advancements in access, however, were not achieved without overcoming serious resistance and obstruction from the rightsholder and publishing industry. The struggle to maintain the library’s access-based mission and serve the public interest began as early as the late 1800s and continues through today. We call these tactics the “publishers’ playbook.” Libraries and their readers have routinely engaged in lengthy battles to defend the ability for libraries to fulfill their mission and serve the public good. The following is a brief review of the times and methods that publishers and rightsholder interests have attempted to hinder the library mission. This pattern of conduct, as reflected in ongoing controlled digital lending litigation, is not unexpected and belies a historical playbook on the part of publishers and rightsholders to maximize their own profits and control over the public’s informational needs. Thankfully, as outlined in this paper, Congress and the courts have historically upheld libraries’ attempts to expand access to information for the public’s benefit.”

Library associations across Europe joint call for action on eBooks – Knowledge Rights 21

“National and other library associations from across Europe have signed a letter underlining the urgency to find ways to ensure that library users continue to be able to benefit from services in a digital world.

The letter highlights the traditional and essential support that libraries play in supporting education, research and access to culture while highlighting that current eBook models and licensing are undermining this….

It is essential to ensure that eBook markets work in ways that allow libraries to do their job and to fulfil their public interest responsibilities, within a clear legal framework. Working alternatives that currently exist rely on voluntary action by publishers, and do not provide full access.Government action is therefore necessary on all three of the following fronts:

Guarantees in law that libraries shall be able to acquire, preserve and electronically lend digitised analogue and born-digital works, such as eBooks, on the same basis as they lend physical works. This will enable more constructive negotiations between libraries and rightholders.

Work to ensure that eLending platforms operate in ways that work best for libraries, their users and authors. 

Aside from copyright reform and market regulation, support further investigation into the dynamics of eBook markets and their impacts on the achievement of public interest goals. This will also serve to inform wider cultural, education and research policies….”

San Francisco Board of Supervisors Unanimously Passes Resolution in Support of Digital Rights For Libraries | Internet Archive Blogs

“In a stunning show of support for libraries, late yesterday afternoon the San Francisco Board of Supervisors voted unanimously to support a resolution backing the Internet Archive and the digital rights of all libraries.

Supervisor Connie Chan, whose district includes the Internet Archive, authored the legislation and brought the resolution before the Board. “At a time when we are seeing an increase in censorship and book bans across the country, we must move to preserve free access to information,” said Supervisor Chan. “I am proud to stand with the Internet Archive, our Richmond District neighbor, and digital libraries throughout the United States.” …”

In the Internet Archive Lawsuit, a Win for Publishers May Come at a Cost for Readers Everywhere | The Walrus

“Ostensibly, publishers and libraries ought to be on the same side: libraries aim to advance learning by providing free and open access to information; publishing literally means to disseminate to the public. Big publishers suing a digital library for furthering this common mission—during an unprecedented assault on libraries’ purpose and function—is a weird look. It’s also unclear what it actually does for writers. Most authors—some estimates say up to 70 percent—don’t earn royalties beyond their book advances and will never have the luxury of worrying about income from the sale of their works in digital formats. The funds under dispute, by and large, go straight back to the publishers.

This situation leaves writers awkwardly caught in the middle. Supporting libraries isn’t just an abstract feel-good principle: it can also have a material effect on a book’s fate. Libraries feature titles, offer programming, and choose how many copies to order. At the same time, writing is a financially precarious enterprise. The prospect of a library buying one copy of your book, scanning it, and lending it out ad infinitum is, admittedly, horrifying. But the Internet Archive decision doesn’t just prevent that outcome—it may also affect libraries’ rights to lend single scanned copies of books that they have already purchased….”

When You Buy a Book, You Can Loan It to Anyone. This Judge Says Libraries Can’t. Why Not? | The Nation

“While Judge John G. Koeltl’s opinion addressed many issues, all his reasoning was based on one assumption: that copyright primarily is about authors’ and publishers’ right to profit. Despite the pervasiveness of this belief, the history of copyright tells us something different….

In the Hachette case, a library that has purchased a copy of a print book digitizes it and lends the e-copy (that’s what CDL means) in place of the paper-and-ink original. The only thing that has changed is the book’s format. The change in format allows the buyer (library) to more effectively use the content it has purchased. Copyright protects a work—not a format—yet the justification used to stop CDL appears to be that the copyright owner has the right to profit repeatedly from the sale of the same content in a specific format to the same buyer, even if the buyer only ever needs one copy and already owns one copy.

Historically, copyright was intended to facilitate the efficient consumption and use of information, not to stand in its way. Libraries remain a critical part of the intended ecosystem, both by paying authors for the number of copies they use and by providing access to borrowers who cannot afford to purchase a book themselves. The weaponization of copyright to artificially limit technology’s reach where it would otherwise enable the buyer to use the work as intended when they bought it hurts all of us—and undermines the very purpose of copyright.”