Category Archives: oa.nel

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

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“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….”

The Internet Archive has lost its first fight to scan and lend e-books like a library – The Verge

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“A federal judge has ruled against the Internet Archive in Hachette v. Internet Archive, a lawsuit brought against it by four book publishers, deciding that the website does not have the right to scan books and lend them out like a library.

Judge John G. Koeltl decided that the Internet Archive had done nothing more than create “derivative works,” and so would have needed authorization from the books’ copyright holders — the publishers — before lending them out through its National Emergency Library program….

The Internet Archive says it will appeal. “Today’s lower court decision in Hachette v. Internet Archive is a blow to all libraries and the communities we serve,” Chris Freeland, the director of Open Libraries at the Internet Archive, writes in a blog post. “This decision impacts libraries across the US who rely on controlled digital lending to connect their patrons with books online. It hurts authors by saying that unfair licensing models are the only way their books can be read online. And it holds back access to information in the digital age, harming all readers, everywhere.”

The two sides went to court on Monday, with HarperCollins, John Wiley & Sons, and Penguin Random House joining Hachette as plaintiffs….”

Publishers Want to End How Libraries Lend Books Online | by Andrew Bauld | EveryLibrary | Feb, 2023 | Medium

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“When the pandemic began and schools and libraries around the country were forced to close their doors, teachers and librarians were at a loss over how to get digital books into the hands of young readers and their families.

The problem was so drastic that the Internet Archive (IA), a nonprofit digital library, declared a National Emergency Library (NEL) lending program. With more than a million digital books in its Open Library collection, the IA temporarily suspended its usual limit on lending digital copies one at a time during this unprecedented period.

While the move was heralded by many readers, schools, and libraries, others weren’t so happy. Several well-known authors blasted the program as “piracy.” Then, two months after it began, Hachette Book Group, HarperCollins, Penguin Random House, and John Wiley & Sons sued the IA, alleging “willful mass copyright infringement.”

Now over two-and-a-half years later, arguments have been fully briefed in the district court, but what began as a dispute over the NEL has grown into a much more complex fight over copyright law, the lending of digital books, and the future of libraries….”

Fair Use Week 2023 (10th Anniversary): Day Two With Guest Expert Prof. Pia Hunter | Copyright at Harvard Library

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“One question that has emerged frequently these past three years, is how? How have libraries provided access to copyrighted materials for remote users? How were students able to access copyrighted materials at the height of the pandemic? When we think of a classroom, most of us consider a traditional space with walls and students together in one room. The logistics for students to access library materials from their homes seemed insurmountable to some because the copyright laws surrounding how students and teachers can gain remote access is complex. Section 110(1) sets a generous standard for how content may be used, but it only applies to face-to-face instruction. Section 110(2), the TEACH Act, allows the digital transmission of copyrighted materials, but only under limited circumstances and the requirements are difficult for many educational institutions to achieve. With these competing sections of the Copyright Act, what was the solution?…

Although the IA had announced their intention to end the emergency access by June 30, 2020, they ended the program two weeks early when publishers Hachette, Penguin Random House, Wiley, and HarperCollins announced that they would sue the IA for copyright infringement. On June 1, 2020, the publishers and several authors filed a complaint in the United States District Court for the Southern District of New York. But this case, Hachette v. Internet Archive, is not about the expanded access IA provided during the pandemic. It is a challenge to how we can use materials in a digital age and how fair use supports our right to do so….”

Fair Use Week 2023 (10th Anniversary): Day Two With Guest Expert Prof. Pia Hunter | Copyright at Harvard Library

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“One question that has emerged frequently these past three years, is how? How have libraries provided access to copyrighted materials for remote users? How were students able to access copyrighted materials at the height of the pandemic? When we think of a classroom, most of us consider a traditional space with walls and students together in one room. The logistics for students to access library materials from their homes seemed insurmountable to some because the copyright laws surrounding how students and teachers can gain remote access is complex. Section 110(1) sets a generous standard for how content may be used, but it only applies to face-to-face instruction. Section 110(2), the TEACH Act, allows the digital transmission of copyrighted materials, but only under limited circumstances and the requirements are difficult for many educational institutions to achieve. With these competing sections of the Copyright Act, what was the solution?…

Although the IA had announced their intention to end the emergency access by June 30, 2020, they ended the program two weeks early when publishers Hachette, Penguin Random House, Wiley, and HarperCollins announced that they would sue the IA for copyright infringement. On June 1, 2020, the publishers and several authors filed a complaint in the United States District Court for the Southern District of New York. But this case, Hachette v. Internet Archive, is not about the expanded access IA provided during the pandemic. It is a challenge to how we can use materials in a digital age and how fair use supports our right to do so….”

Publishers Want to End How Libraries Lend Books Online – EveryLibrary Action

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“A court decision could limit how you access e-books from the library.

When the pandemic began and schools and libraries around the country were forced to close their doors, teachers and librarians were at a loss over how to get digital books into the hands of young readers and their families.

The problem was so drastic that the Internet Archive (IA), a nonprofit digital library, declared a National Emergency Library (NEL) lending program. With more than a million digital books in its Open Library collection, the IA temporarily suspended its usual limit on lending digital copies one at a time during this unprecedented period.

While the move was heralded by many readers, schools, and libraries, others weren’t so happy. Several well-known authors blasted the program as “piracy.” Then, two months after it began, Hachette Book Group, HarperCollins, Penguin Random House, and John Wiley & Sons sued the IA, alleging “willful mass copyright infringement.”

Now over two-and-a-half years later, arguments have been fully briefed in the district court, but what began as a dispute over the NEL has grown into a much more complex fight over copyright law, the lending of digital books, and the future of libraries….”

[Publisher response to Internet Archive motion for discovery]

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“Plaintiffs have produced a vast wealth of detailed sales and related financial data concerning the Works in Suit, totaling over 670,000 rows of data in Excel. Now, after the close of document discovery and on the eve of depositions, IA seeks to compel the production of “commercial performance data,” broken down by month, distribution channel, price and income, for all other books published by the Plaintiffs since 2011 – an undertaking that would involve a massive amount of data concerning more than 500,000 titles. And IA makes this extraordinary demand in order to rifle through an enormous reservoir of highly proprietary data concerning books that are not the Works in Suit, all in an effort to somehow select “for each work in suit, one or more comparable books that were not available for digital lending” on IA’s system. Dkt. 47, 2. In other words, because the significant financial data already provided concerning the Works in Suit apparently does not support IA’s theory on market harm, IA wants access to millions of data points concerning Plaintiffs’ entire book catalogues. IA argues it is entitled to do this in order to see if any evidence might exist to support the inherently incredible theory that copying entire books and distributing them to any member of the public worldwide upon demand does not compete with Plaintiffs’ sales of the same books. Even worse, IA’s quest rests on the palpably false theory that it can quantify the harm caused by its infringement by comparing the sales of completely different books. Books are not interchangeable widgets and marketplace performance is driven by countless indeterminate and changing facts. In short, Defendant’s letter motion should be denied because the enormous and costly burden to Plaintiffs far outweighs the negligible value (if any) of the evidence sought, especially given the lack of legally relevant results that it will yield and the delays it will cause to the case….”

Internet Archive motion to the court

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“Pursuant to Local Civil Rule 37.2, Defendant Internet Archive respectfully requests a pre-motion discovery conference regarding a motion to compel the production of information regarding the commercial performance of books published by Plaintiffs. In the above-captioned lawsuit, Plaintiffs contend that the Internet Archive infringed Plaintiffs’ copyrights by the non-profit digital lending of library books. The Internet Archive maintains that the challenged lending constitutes fair use under 17 U.S.C. § 107. In considering fair use, one factor courts consider is “the effect of the use upon the potential market for or value of the copyrighted work.” Plaintiffs claim that the Internet Archive’s digital library lending has a negative effect on the market for or value of the works. The Internet Archive disagrees, and wishes to bring forward evidence showing that lending had little or no effect on the commercial performance of the books being lent, compared to books that were not lent….”

Sell This Book! | The Nation

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“Corporate publishing wants to turn all readers into renters. We’re trying to stop them….

Libraries should pay only once for each copy of an ebook, as the Open Library did for the new Brick House book, so that they can lend it to their patrons forever, and nobody—no government, business, or regulatory body—will ever be able to stop them.”

A senseless lawsuit: “The Internet Archive has a heart, and knows how to use it” |

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“When I heard about the lawsuit for copyright infringement launched on 1st June 2020 in the US by four major publishers (Hachette, Penguin Random House, Wiley, HarperCollins) against the Internet Archive for its Open Library, I couldn’t believe it. I thought this was a bad dream, that turned into a nightmare with the lawsuit scheduled for trial from 12 November 2021.

I briefly thought we were back in the 1990s, when publishers were fearing digital piracy and copyright infringement while threatening a few pioneers with lawsuits. But we are in 2021….

The Internet Archive has been here for 25 years. It knows about its trailblazing power to promote reading for all and education for all. The movement it has created is unstoppable. Why a lawsuit instead of a partnership?”

A Public Service Role For Digital Libraries: The Unequal Battle Against (Online) Misinformation Through Copyright Law Reform And The Emergency Electronic Access To Library Material by Argyri Panezi :: SSRN

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Abstract:  This article analyzes the role of copyright doctrine and case law in preserving the institutional function of libraries—both on- and offline—as trusted and, in principle, neutral hubs equalizing access to credible information and knowledge in societies with structural inequalities. In doing so it examines the ongoing Hachette v. Internet Archive litigation before the US District Court of the Southern District of New York in the context of earlier copyright cases, finding that there is a persistent need for electronic access to library material online.

Libraries have traditionally served an important role as reserved spaces for legally permissible distribution of books outside of markets. Copyright law, however, has the potential to hinder the fuction of libraries and other cultural heritage institutions particularly in equalizing access to knowledge. While there exist some exceptions and limitations that partially alleviate this, their applicability in the digital environment is still contested. Two novel challenges are interfering: first, an unmet and contentious need for emergency access to electronic library material to be granted online, and second, the need to counteract historical biases and misinformation, both of which multiply when spread within a hyper-connected and digitized society. In order to ensure electronic access to credible information and knowledge, policymakers must address these challenges strategically and reassess the needs of subjects and institutions that are currently subject to copyright exceptions.

Hachette v. Internet Archive follows a string of copyright cases that involved challenges to digitization without permission and to providing electronic access to digitized library material. The plaintiffs in Hachette v. Internet Archive, four publishers, brought copyright claims against the Internet Archive for the latter’s operation of a “National Emergency Library” within the context of the COVID-19 pandemic. The case introduces a new dimension to existing debates around electronic access to library material, particularly around e-lending, raising the question: Can emergencies justify additional exceptions to copyright laws covering electronic access to library material, and if so, under what circumstances?

After analyzing the relevant settled case law and the ongoing litigation against the Internet Archive and then looking back into the history of and rationale for copyright laws, the article advances a normative claim—that copyright should provide better support to libraries and digital libraries in particular (broadly defined) as the institutional safeguards of our literary treasures. Libraries have a public service mandate to preserve, curate, and provide access to a plurality of original and authoritative sources, and thus ultimately aspire not to compete in the marketplace but to become trusted hubs that equalize access to knowledge. In the context of a society currently struggling to fight historical biases and (online) misinformation, providing libraries with the legal support needed to fulfill this mandate will enable them to more effectively safeguard and provide equal access to (at least relatively) credible information and knowledge, including in the digital environment.

Libraries, National Emergencies, and Access to Credible Information: Are we protecting libraries’ multiple roles during emergencies? | Authors Alliance

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“On June 1, 2020, four publishing houses, Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC, filed before the US District Court for the Southern District of New York a copyright infringement action against the Internet Archive for the Archive’s operation of what it called a “National Emergency Library” (NEL) after the first US shelter-in-place orders in response to the COVID-19 pandemic. Indeed, on March 24, 2020, the Internet Archive had announced the launch of a temporary online NEL to support “emergency remote teaching, research activities, independent scholarship, and intellectual stimulation while universities, schools, training centers, and libraries were closed due to COVID-19.” In their announcement the Archive called on authors and publishers to support the effort, which would ensure “temporary access to their work in this time of crisis.” It provided an opt-in option for authors who wanted to donate their book(s) to the NEL, and an opt-out option for authors who wanted to remove their book(s) from the NEL….

In my recent article, A Public Service Role for Digital Libraries: The Unequal Battle Against (Online) Misinformation Through Copyright Law Reform and the Emergency Electronic Access to Library Material (forthcoming, 31 Cornell J.L.& Pub. Pol’y_ _ (2021)), I examine the ongoing Hachette v. Internet Archive litigation, placing it in the context of earlier US copyright case law that deals with the digitization or the making available of copyrighted works for educational, research, and other purposes (notably: Authors Guild v. Google, Authors Guild v. HathiTrust, and Cambridge University Press v. Becker). There is also a global debate focusing on similar issues, apparent, for example, in similar cases brought before courts in Europe (Technische Universität Darmstadt v. Eugen Ulmer KG and Vereniging Openbare Bibliotheken v. Stichting Leenrech), India (University of Oxford v. Rameshwari Photocopy Service), and Canada (CCH Canadian Ltd v. Law Society of Upper Canada and the recent York University v. Access Copyright)….”

Now Is Not The Time For Publishers to Go After Online Libraries: Hachette Book Group, Inc. v. Internet Archive – The Temple 10-Q

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“Nothing better promotes the progress of science and the arts than access to knowledge, especially during a global pandemic. COVID-19 has highlighted how our society has changed in the past few decades and how much it needs to change in the decades to come. As schools and workplaces, law firms included, went partially or completely remote, connectivity and access to online resources became more important than ever. It is in this environment that several publishers chose to bring litigation against Internet Archive (IA) in Hachette Book Group, Inc. v. Internet Archive. 

Open Library is a non-profit digital library founded by IA that offers online access to more than 1.3 million books that it has digitized into a PDF format. Operating under the Controlled Digital Lending (CDL) model, Open Library lends out only as many books as it has physical hardcopies of. Essentially, the basis of CDL is that a book must be owned to be loaned.  …”

Billion-Dollar Book Companies Are Ripping Off Public Schools | The New Republic

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“Over the past decade, Silicon Valley’s tech behemoths have discreetly and methodically tightened their grip on American schools, and the pandemic has given them license to squeeze even tighter. By 2017, tens of millions of students were already using Google Chromebooks and apps for reading, writing, and turning in their work. Google Classroom now has more than 100 million users worldwide—nearly seven times the number reported in The New York Times three years ago. When we emerge from the pandemic, schools will be even more reliant on such systems. Industry is bolting an adamantine layer of technology onto the world’s classrooms, in what amounts to a stealth form of privatization….

But in practice, this convenience comes at a staggering cost. Billion-dollar companies like Follett and EBSCO are renting e-books to schools each year, rather than selling them permanent copies. By locking school districts into contracts that turn them into captive consumers, corporate tech providers are draining public education budgets that don’t have a penny to spare….

So why not shop around for a better deal? She can’t. Just as you can’t use ­iPhone apps on your Android phone, a school district’s choice of software providers locks administrators into a tangled web of agreements, training, and financial and organizational investments that publishers exploit to their advantage. California requires providers to sign a privacy agreement promising not to sell student data, further limiting options, Woodcock said, because not all providers are willing to sign….

Woodcock proposes what is surely a fair deal: Schools should be able to purchase e-books outright, rather than having to rent them. “I buy it, I own it. It doesn’t go away.”

Another obvious way to relieve the pressure on schools would be to expand the use of free public resources like the Internet Archive’s Open Library, which lends e-books on traditional library terms (you can’t download books from the Open Library; you can only borrow and read them). Early in the pandemic, the Open Library made waves by creating a temporary resource, the National Emergency Library, dropping restrictions on the number of people who could access a given title simultaneously. With bookstores, libraries, and schools closed all over the world, Internet Archive staff reasoned, students needed emergency access to books.

The suit seeks to destroy the Open Library altogether. But what publishers truly want is the end of ownership. If they win, books will someday become like movies on Netflix—something that schools, and all of us, will have to keep paying for forever….”

 

Internet Archive lawyer Lila Bailey leads a new phase of the battle over copyright | Fortune

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“The case involves the Internet Archive’s decision to create a temporary “National Emergency Library” at the height of the pandemic’s first wave—a service that expanded how many e-books clients could borrow simultaneously. The publishing industry sued, saying the non-profit was handing out digital books without permission.

 

The Internet Archive case has received national attention—a widely shared article in The Nation described it as “publishers taking the Internet to court”—and has drawn attention to the reality that, as library branches close over COVID concerns, patrons must often wait 10 weeks or more to borrow the digital version of a best-seller….”