Publishers Sue Internet Archive over Open Library

“Is the Internet Archive’s Open Library a vital channel that democratizes information access, or is it a large-scale digital piracy operation? That’s the question raised in a lawsuit filed by four major book publishers against the nonprofit information vault’s Open Library online-lending project.

The Internet Archive perhaps is best known for its Wayback Machine®, which allows users to go back in time and access a 10-petabyte collection of internet history—that’s over 330 billion web pages. For lawyers, the website and its records have been a unique source of information in some legal disputes, as they enable users to see web history records dating back to 1996.

The Internet Archive’s Open Library project scans libraries’ collections and allows users to digitally borrow books under a system of Controlled Digital Lending (CDL). This limits access to the actual number of physical books and puts users on a waiting list if a book is already checked out.

In March 2020, the Internet Archive temporarily eased Open Library’s lending restrictions amid the COVID-19 pandemic as part of its National Emergency Library project. The change enabled multiple people to check out the same digital copy of a book at the same time in light of physical libraries being shuttered. In response, Hachette, Penguin Random House, Wiley and HarperCollins® filed a copyright infringement lawsuit in New York federal court on June 1 against the Internet Archive, calling both the regular Open Library and the National Emergency Library “digital piracy on an industrial scale.” The Internet Archive ended the Emergency Library project on June 16, but the lawsuit remains in place.

The publishers allege that the Internet Archive’s business model involves freely disseminating scanned copies of physical books through its website, which is “parasitic and illegal” and exploits the work of authors and publishers without paying any of the costs associated with creating the books. It asks the court for damages for publishers’ copyrighted works, and both a preliminary and permanent injunction of the Internet Archive’s digitization and lending processes. It also asks the court to order all unlawful copies of derivative works to be destroyed—more than 1.5 million volumes.

In its response to the lawsuit, the Internet Archive denies it has violated copyright laws and says its CDL program is fundamentally the same as traditional library lending and is protected by U.S. copyright law’s fair use doctrine because it serves the public interest in preservation, access and research. And in a blog post, Internet Archive founder Brewster Kahle called on the publishers to drop the lawsuit and to work with his group to “help solve the pressing challenges to access to knowledge during this pandemic.”

While the lawsuit only focuses on the Internet Archive’s Open Library and doesn’t take issue with the Wayback Machine or digitization of materials in the public domain, the fear is that a victory for the publishers could financially harm the Internet Archive, and thus destroy the Wayback Machine….”

Publishers Sue Internet Archive over Open Library

“Is the Internet Archive’s Open Library a vital channel that democratizes information access, or is it a large-scale digital piracy operation? That’s the question raised in a lawsuit filed by four major book publishers against the nonprofit information vault’s Open Library online-lending project.

The Internet Archive perhaps is best known for its Wayback Machine®, which allows users to go back in time and access a 10-petabyte collection of internet history—that’s over 330 billion web pages. For lawyers, the website and its records have been a unique source of information in some legal disputes, as they enable users to see web history records dating back to 1996.

The Internet Archive’s Open Library project scans libraries’ collections and allows users to digitally borrow books under a system of Controlled Digital Lending (CDL). This limits access to the actual number of physical books and puts users on a waiting list if a book is already checked out.

In March 2020, the Internet Archive temporarily eased Open Library’s lending restrictions amid the COVID-19 pandemic as part of its National Emergency Library project. The change enabled multiple people to check out the same digital copy of a book at the same time in light of physical libraries being shuttered. In response, Hachette, Penguin Random House, Wiley and HarperCollins® filed a copyright infringement lawsuit in New York federal court on June 1 against the Internet Archive, calling both the regular Open Library and the National Emergency Library “digital piracy on an industrial scale.” The Internet Archive ended the Emergency Library project on June 16, but the lawsuit remains in place.

The publishers allege that the Internet Archive’s business model involves freely disseminating scanned copies of physical books through its website, which is “parasitic and illegal” and exploits the work of authors and publishers without paying any of the costs associated with creating the books. It asks the court for damages for publishers’ copyrighted works, and both a preliminary and permanent injunction of the Internet Archive’s digitization and lending processes. It also asks the court to order all unlawful copies of derivative works to be destroyed—more than 1.5 million volumes.

In its response to the lawsuit, the Internet Archive denies it has violated copyright laws and says its CDL program is fundamentally the same as traditional library lending and is protected by U.S. copyright law’s fair use doctrine because it serves the public interest in preservation, access and research. And in a blog post, Internet Archive founder Brewster Kahle called on the publishers to drop the lawsuit and to work with his group to “help solve the pressing challenges to access to knowledge during this pandemic.”

While the lawsuit only focuses on the Internet Archive’s Open Library and doesn’t take issue with the Wayback Machine or digitization of materials in the public domain, the fear is that a victory for the publishers could financially harm the Internet Archive, and thus destroy the Wayback Machine….”

Publishers, Internet Archive Propose Yearlong Discovery Plan for Copyright Case

“In a joint filing last week, attorneys for the Internet Archive and four publishers suing for copyright infringement proposed a discovery plan for the case that would extend for more than a year. The filing, known as a rule 26(f) report, lays out a potential road map for the case that would begin with the first proposed deadline for initial fact disclosures on September 11, 2020, and would conclude with expert depositions due by September 20, 2021.

The filing notes that the parties “did not agree to any limitations on the number of interrogatories, requests for production, or requests for admission that may be served.” The Plaintiff publishers told the court they do not anticipate taking more than 10 depositions, but lawyers for the Internet Archive note that because there are “four unaffiliated Plaintiffs” they will likely require more than 10 depositions. And while the Internet Archive has demanded a jury trial, both parties indicated in the filing that they expect to move for summary judgment in this case….”

Knocking Down the Barriers to Knowledge: Lila Bailey wins IP3 Award – Internet Archive Blogs

“This week, Public Knowledge, the public interest policy group, announced the winners of its 17th annual IP3 Awards. IP3 awards honor those who have made significant contributions in the three areas of “IP”—intellectual property, information policy, and internet protocol. On September 24, the 2020 Intellectual Property award will be presented to Lila Bailey, Policy Counsel at the Internet Archive. 

“She has been a tremendous advocate and leader behind the scenes on behalf of libraries and archives, ensuring both can serve the public in the digital era,” said Chris Lewis, President and CEO of Public Knowledge. “Working at the intersection between copyright and information access, Lila has been instrumental in promoting equitable access to contemporary research through Controlled Digital Lending — the library lending practice currently under threat because of a legal challenge from large commercial publishers.”  …”

Internet Archive Files Response to Lawsuit Emphasizing Need for Access to Information – SPARC

“While the demand for digital access to books skyrockets during the global pandemic, the Internet Archive maintains that its practice of Controlled Digital Lending (CDL) is more vital than ever.

On July 28, the San Francisco-based nonprofit filed a response to the lawsuit brought by four commercial publishers to end the widespread practice of CDL. Scanning a copy of a print book and lending it one digital copy at a time to one reader at a time is how Internet Archives lending has worked for nearly nine years, writes its founder Brewster Kahle in a blog about the issue….”

Internet Archive Files Response to Lawsuit Emphasizing Need for Access to Information – SPARC

“While the demand for digital access to books skyrockets during the global pandemic, the Internet Archive maintains that its practice of Controlled Digital Lending (CDL) is more vital than ever.

On July 28, the San Francisco-based nonprofit filed a response to the lawsuit brought by four commercial publishers to end the widespread practice of CDL. Scanning a copy of a print book and lending it one digital copy at a time to one reader at a time is how Internet Archives lending has worked for nearly nine years, writes its founder Brewster Kahle in a blog about the issue….”

Even More Impacts of the National Emergency Library and Controlled Digital Lending – Internet Archive Blogs

“This is the third part in a series of testimonials from patrons who used the National Emergency Library and continue to use controlled digital lending to borrow books from our library (you can read the previous posts here and here). If you’d like to share your story of how you used the NEL while it was open, or how you are still using our lending library today, please leave a testimonial….”

Even More Impacts of the National Emergency Library and Controlled Digital Lending – Internet Archive Blogs

“This is the third part in a series of testimonials from patrons who used the National Emergency Library and continue to use controlled digital lending to borrow books from our library (you can read the previous posts here and here). If you’d like to share your story of how you used the NEL while it was open, or how you are still using our lending library today, please leave a testimonial….”

Libraries Are Not a Crime – JURIST – Commentary – Legal News & Commentary

“In response, the Internet Archive created the National Emergency Library, an online library of books in its collection that people could “borrow” for limited periods of time. All of the books included were more than 5 years old, and copyright owners could opt out on demand. The idea was to ensure that people had at least some access to books that were otherwise unavailable.

The evidence shows that people used the online library the same way they use a physical library. Most people used the books for a few minutes, long enough to confirm a fact or check a citation. A few people used the books for longer, presumably in order to read them.

What a success! In a time of need, a charitable organization made information available to people who otherwise wouldn’t be able to get it, at no cost to anyone. Sometimes, charitable organizations really can solve social problems efficiently and effectively.

But wait. The copyright cops went apoplectic. On their telling, the Internet Archive is a “piracy” organization, and the NEL is “cheating” authors by “defrauding” them of book sales. Essentially, they complained that the NEL was “anti-author” because it enabled people to borrow books electronically, rather than buying them. Every borrowed book was a lost sale, at least in their imagination. And they further imagined that the profits from those supposed lost sales would otherwise have gone to authors….”

How Internet Archive and controlled digital lending can help course reserves this fall – Internet Archive Blogs

“I host regular webinars about the Internet Archive’s Open Libraries program, helping librarians and others understand how controlled digital lending works, and how their library can make their print collections available to users online. The question of how to safely handle course reserves is clearly among the top priorities for academic librarians as they approach fall semester, just a few short weeks away. At nearly every webinar session since early March, and certainly every session this summer, librarians have raised the question of how controlled digital lending can work for course reserves.  

We’re getting such a large number of inquiries on this topic that I thought it would be helpful to outline how Internet Archive’s Open Libraries program and controlled digital lending can help your library with course reserves this fall, and where we may have limitations in supporting your full suite of needs….”

Internet Archive Defends Library Digitize-and-Lend Model | Authors Alliance

“The Internet Archive has responded to a copyright lawsuit filed by a group of commercial publishers which takes aim at the Controlled Digital Lending (“CDL”) model and the Internet Archive’s (now closed) National Emergency Library. The Internet Archive’s answer to the publishers’ complaint highlights the fair use arguments underpinning the digitize-and-lend model, which has been in operation since 2011 with the support and participation of hundreds of other libraries.

Under the CDL digitize-and-lend model, libraries make digital copies of scanned books from their collections available to patrons (the hard copy is not available for lending while the digital copy is checked out, and vice versa). A library can only circulate the same number of copies that it owned before digitization. Like physical books, the scanned copies are loaned to one person at a time and are subject to limited check-out periods. The Internet Archive launched National Emergency Library in March in response to the COVID-19 outbreak which left the physical collections in libraries inaccessible to patrons; books available through the National Emergency Library were not subject to the “owned-to-loaned” ratio. The National Emergency Library closed on June 16.

The Internet Archive’s answer to the publishers’ complaint explains that the digitize-and-lend model serves the public interest in preservation, access, and research—all classic fair use purposes. Every book in the collection has already been bought and paid for by the libraries that own them, and most of the volumes are out of print….”

Libraries lend books, and must continue to lend books: Internet Archive responds to publishers’ lawsuit – Internet Archive Blogs

“Yesterday, the Internet Archive filed our response to the lawsuit brought by four commercial publishers to end the practice of Controlled Digital Lending (CDL), the digital equivalent of traditional library lending. CDL is a respectful and secure way to bring the breadth of our library collections to digital learners. Commercial ebooks, while useful, only cover a small fraction of the books in our libraries. As we launch into a fall semester that is largely remote, we must offer our students the best information to learn from—collections that were purchased over centuries and are now being digitized. What is at stake with this lawsuit? Every digital learner’s access to library books. That is why the Internet Archive is standing up to defend the rights of  hundreds of libraries that are using Controlled Digital Lending.

The publishers’ lawsuit aims to stop the longstanding and widespread library practice of Controlled Digital Lending, and stop the hundreds of libraries using this system from providing their patrons with digital books. Through CDL, libraries lend a digitized version of the physical books they have acquired as long as the physical copy doesn’t circulate and the digital files are protected from redistribution. This is how Internet Archive’s lending library works, and has for more than nine years. Publishers are seeking to shut this library down, claiming copyright law does not allow it. Our response is simple: Copyright law does not stand in the way of libraries’ rights to own books, to digitize their books, and to lend those books to patrons in a controlled way. ”

Internet Archive to Publishers: Drop ‘Needless’ Copyright Lawsuit and Work with Us

“During a 30-minute Zoom press conference on July 22, Internet Archive founder Brewster Kahle urged the four major publishers suing over the organization’s book scanning efforts to consider settling the dispute in the boardroom rather than the courtroom.

“Librarians, publishers, authors, all of us should be working together during this pandemic to help teachers, parents, and especially students,” Kahle implored. “I call on the executives of Hachette, HarperCollins, Wiley, and Penguin Random House to come together with us to help solve the challenging problems of access to knowledge during this pandemic, and to please drop this needless lawsuit.” 

Kahle’s remarks came as part of a panel, which featured a range of speakers explaining and defending the practice of Controlled Digital Lending (CDL), the legal theory under which the Internet Archive has scanned and is making available for borrowing a library of some 1.4 million mostly 20th century books….”

Internet Archive to Publishers: Drop ‘Needless’ Copyright Lawsuit and Work with Us

“During a 30-minute Zoom press conference on July 22, Internet Archive founder Brewster Kahle urged the four major publishers suing over the organization’s book scanning efforts to consider settling the dispute in the boardroom rather than the courtroom.

“Librarians, publishers, authors, all of us should be working together during this pandemic to help teachers, parents, and especially students,” Kahle implored. “I call on the executives of Hachette, HarperCollins, Wiley, and Penguin Random House to come together with us to help solve the challenging problems of access to knowledge during this pandemic, and to please drop this needless lawsuit.” 

Kahle’s remarks came as part of a panel, which featured a range of speakers explaining and defending the practice of Controlled Digital Lending (CDL), the legal theory under which the Internet Archive has scanned and is making available for borrowing a library of some 1.4 million mostly 20th century books….”

Scholars Back Internet Archive’s Defense of Digital Lending

“A collection of scholars and public interest organizations is backing the Internet Archive’s argument that its digital lending qualifies as fair use, comparable to traditional library lending.

Four major publishers, including Penguin Random House LLC and HarperCollins Publishers LLC, argued in a June 1 lawsuit that the Internet Archive’s practice of lending books it scanned into its 1.3 million book digital library to one reader at a time constituted blatant copyright infringement….”