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

“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.  …”

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

“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….”

Pop! Public-Private Partnerships and the Digitization of the Textual and Cultural Record

“This paper follows these threads to investigate a series of case studies of electronic access to books and cultural heritage, each incorporating some notion of a public-private partnership and some notion of the importance of open access or public good agendas, using as case studies projects like the HathiTrust’s Digital Library, Google Books, and Microsoft’s partnership with the British Library in the ill-fate Live Search Books project. The paper asks how the principles of open social scholarship contribute to a better and more nuanced understanding of digitization as a cultural practice and asks how a better understanding of the networks, partnerships, and paperwork (agreements, policies etc) of digitization could inform developments in open social scholarship. …”

Publisher Lawsuit Against Internet Archive Puts Future of Book Ownership In Question | WDET

“The newly-launched library serviced a temporary collection of books — about 4 million in total, many in the public domain — with a targeted focus of supporting remote teaching, research activities and independent scholarship. For this service, students paid nothing. 

This Open Library is now at the center of a lawsuit filed by major publishing corporations, including HarperCollins, Hatchett, Wiley and Random House, against the Internet Archives, a nonprofit website, alleging that the Open Library concept is a “mass copyright infringement.”

The lawsuit is scheduled for a federal court trial in 2021.  The publishers are seeking to have the Open Library permanently shut down….

In an op-ed written for The Nation, journalist and new media pioneer Maria Bustillos took a critical look at the lawsuit, the concept of an open library and what ownership means when major publishers seek to change what it means to own a book….”

Internet Archive Responds to Piracy Charges | CCC’s Beyond the Book

“According to the filing, says [Andrew Albanese of Publishers Weekly], the Internet Archive “does what libraries have always done: buy, collect, preserve, and share our common culture. Its untested legal theory of Controlled Digital Lending (CDL) is [allegedly] a good faith and legal effort specifically designed to ‘mirror traditional library lending online.’

[Still quoting Albanese:] “Contrary to the publishers’ accusations, the filing states, the Internet Archive, and the hundreds of libraries that support CDL, are not pirates or thieves, they are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world.” …”

Judge Sets Tentative Trial Date for November 2021 – Internet Archive Blogs

“This week, a federal judge issued this scheduling order, laying out the road map that may lead to a jury trial in the copyright lawsuit brought by four of the world’s largest publishers against the Internet Archive. Judge John G. Koeltl has ordered all parties to be ready for trial by November 12, 2021. He set a deadline of December 1, 2020, to notify the court if the parties are willing to enter settlement talks with a magistrate judge. 

Attorneys for the Internet Archive have met with representatives for the publishers, but were unable to reach an agreement. “We had hoped to settle this needless lawsuit,” said Brewster Kahle, Internet Archive’s founder and Digital Librarian. “Right now the publishers are diverting attention and resources from where they should be focused: on helping students during this pandemic.” 

The scheduling order lays out this timeline:

Discovery must be completed by September 20, 2021;
Dispositive motions must be submitted by October 8, 2021;
Pretrial orders/motions must be submitted by October 29, 2021;
Parties must be ready for trial on 48 hours notice by November 12, 2021…..

Publishers Weekly Senior Writer Andrew Albanese has been covering the story from the beginning. In a July 31st Beyond the Book podcast for the Copyright Clearance Center, Albanese shared his candid opinions about the lawsuit. “If this was to be a blow out, open-and-shut case for the publishers, what do the publishers and authors get?” Albanese asked. “I’d say nothing.”

“Honestly, a win in court on this issue will not mean more sales for books for publishers. Nor will it protect any authors or publisher from the vagaries of the Internet,” the Publishers Weekly journalist continued. “Here we are in the streaming age, 13 years after the ebook market took off, and we’re having a copyright battle, a court battle over crappy PDFs of mostly out-of-print books? I just don’t think it’s a good look for the industry.” …”

Publishers Are Taking the Internet to Court

“The trial is set for next year in federal court, with initial disclosures for discovery scheduled to take place next week. The publishers’ “prayer for relief” seeks to destroy the Open Library’s existing books, and to soak the Internet Archive for a lot of money; in their response, the Archive is looking to have its opponents’ claims denied in full, its legal costs paid, and “such other and further relief as the Court deems just and equitable.” But what’s really at stake in this lawsuit is the idea of ownership itself—what it means not only for a library but for anyone to own a book….

The Internet Archive is a tech partner to hundreds of libraries, including the Library of Congress, for whom it develops techniques for the stewardship of digital content. It helps them build their own Web-based collections with tools such as Archive-It, which is currently used by more than 600 organizations including universities, museums, and government agencies, as well as libraries, to create their own searchable public archives. The Internet Archive repairs broken links on Wikipedia—by the million. It has collected thousands of early computer games, and developed online emulators so they can be played on modern computers. It hosts collections of live music performances, 78s and cylinder recordings, radio shows, films and video. I am leaving a lot out about its groundbreaking work in making scholarly materials more accessible, its projects to expand books to the print-disabled—too many undertakings and achievements to count….

For-profit publishers like HarperCollins or Hachette don’t perform the kind of work required to preserve a cultural posterity. Publishers are not archivists. They obey the dictates of the market. They keep books in print based on market considerations, not cultural ones. …

publishers would like to see libraries obliged to license, not to own, books—that is, continue to pay for the same book again and again. That’s what this lawsuit is really about. It’s impossible to avoid the conclusion that publishers took advantage of the pandemic to achieve what they had not been able to achieve previously: to turn the library system into a “reading as a service” operation from which they can squeeze profits forever….”

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….”

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….”

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….”

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. ”