The Internet Archive’s Open Library has been controversial since it launched back in 2006. The non-profit organization is dedicated to scanning and uploading books, many under copyright, and making them available to readers online for free.
In March, in response to libraries shuttering as a result of COVID-19 lockdowns, the Internet Archive created the National Emergency Library, removing restrictions on how frequently digital copies of their 1.4 million books could be accessed. This has caused consternation on the part of authors and publishers alike, and on Monday, four major U.S. publishers launched a lawsuit against the non-profit alleging wide ranging copyright violation.
The four publishers – HarperCollins, Penguin Random House, John Wiley & Sons, and Hachette Book Group – argue in their suit that “IA’s actions grossly exceed legitimate library services, do violence to the Copyright Act, and constitute wilful digital piracy on an industrial scale.” The suit, which was filed in the U.S. District Court for the Southern District of New York, goes on to say that “IA’s infringement is intentional and systematic: it produces mirror-image copies of millions of unaltered in-copyright works for which it has no rights and distributes them in their entirety for reading purposes to the public for free, including voluminous numbers of books that are currently commercially available.”
Writing in the New York Times, Elizabeth A. Harris quotes a statement from Brewster Kahle, the digital librarian at Open Library, who says that his organization is simply behaving the way any library would:
As a library, the Internet Archive acquires books and lends them, as libraries have always done. This supports publishing and authors and readers. Publishers suing libraries for lending books, in this case, protected digitized versions, and while schools and libraries are closed, is not in anyone’s interest.
But as Harris points out, there are several important distinctions between the Internet Archive and a traditional lending library:
Internet Archive operates differently from public libraries with e-book lending programs. Traditional libraries pay licensing fees to publishers and agree to make them available for a particular period or a certain number of times. Internet Archive, on the other hand, acquires copies through donated or purchased books, which are then scanned and put online.
The tech site Engadget, perhaps unsurprisingly, is sympathetic to Internet Archive’s stance and worries that the lawsuit poses an existential threat to the site and the other positive work it has done for online culture, such as “attempt[ing] to archive everything Trump says on video in order to help fact checkers, fix[ing] nine million broken Wikipedia links, sav[ing] Google+ posts, and start[ing] a historical web collection to power services like the Wayback Machine.” Engadget states that Internet Archive’s status as a non-profit indicates that it “clearly isn’t meant for piracy.”
Regardless of its other endeavours (and one has to wonder how beneficial to humanity archiving posts from the short-lived social media site Google+ really might be), its wholesale pillaging of copyrighted works has measurable negative effects on authors’ incomes, especially during a period when revenues from bookstores have all but dried up due to COVID-19 mandated closures.
The Internet Archive claims that its actions constitute fair use during the pandemic shutdown. Bloomberg Law quotes a letter the organization sent in April to the Republican North Carolina senator Thom Tillis defending its actions, saying, “The National Emergency Library was developed to address a temporary and significant need in our communities – for the first time in our nation’s history, the entire physical library system is offline and unavailable.” (Most library systems continue to lend digital copies from their own collections, and many bookstores offer delivery or curbside pick-up of physical books during the pandemic.)
Elsewhere, Bloomberg Law suggests that the Internet Archive’s defence is not likely to fly. “ ‘I don’t think they have a leg to stand on regarding fair use,’ said Jason Bloom of Haynes and Boone LLP, adding that he was a ‘little bit’ surprised that it took the publishers as long as it did to sue.”