Earlier this month, the Internet Archive asked a US court to: end a lawsuit four major book publishers filed against it.
The Internet archive is a non-profit organization founded in 1996 that lends digital copies of books, music, movies, and other digitized content to the public. It goals to support people with print disabilities, preserve digital content for future generations and democratize access to knowledge.
The publishers say the internet archive’s digital lending practices amount to intentional copyright infringement. Authors also have complained the site hosts illegal content.
The internet archive says yes act like a regular library, because it only lends digital copies of physical books it owns. The supporters at the Electronic Frontiers Foundation say the publishers just want”to determine how libraries are allowed to lend the books they own”.
The National Emergency Library
Publishers were particularly concerned about the “National Emergency Library” set up by the internet archive in March 2020. This temporary project was aimed at give teachers access on digital teaching materials in light of widespread library closures due to the COVID-19 pandemic.
In June 2020, the publishers Hachette, Penguin Random House, HarperCollins and John Wiley & Sons filed a copyright infringement action. The publishers appear to want to close not only the National Emergency Library, but all of the Internet Archive’s lending practices.
The publishers claim that the Internet Archive deals with: intentional massive copyright infringement by lending digital books without permission from and payment to publishers.
Announcing a National Emergency Library @internetarchive– 1.4 million free books to meet the needs of students and readers while schools and libraries are closed worldwide. https://t.co/FB1J2xSeVY and browse the collection on https://t.co/F7gcv0kP7L pic.twitter.com/NW2L0OvfkE
— Internet Archive (@InternetArchive) March 24, 2020
The internet archive states that because only one person can borrow a digital book at a time, it is simply a copy of the regular library loan. However, this restriction was temporarily relaxed for the National Emergency Library.
No payment to publishers is required for the loan of a regular library. Once a library purchases a book, the library is free to lend it to its members.
The publishers argue that digital books are not the same as physical books and should be treated differently according to the law.
Copyright déjà vu?
Didn’t Google win the discussion about digital books years ago? Yes and no.
Google started digitizing library books in 2002. In 2005, publishers and authors of books a controversial lawsuit against Google for copyright infringement, which took a decade to resolve.
In the Google case, US courts have ruled that it is “fair practice” to make full copies of books and display excerpts of those books to the public in the Google Books database.
In deciding for Google, the courts paid particular attention to the historic purpose of copyright, which is to serve the public interest in access to knowledge.
A question of markets
But Google Books’ decision doesn’t mean book publishers will lose again from the Internet Archive.
In the United States, when deciding whether a use is fair or not, courts must consider the extent to which the copyright owner’s markets are being harmed.
Because book publishers often lend e-books commercially (including to libraries), the Internet archive could be seen as damaging to that aspect of the publishing market.
You could say that by providing full online access to books, the Internet Archive does for free what the publishers do for a fee.
This is different from the Google Books decision, which considered providing access to excerpts of books in Google’s database to potentially expand the book market.
What counts as fair use?
However, the flexibility of fair use is something that the Internet Archive has on its side.
There is scope for the court to assess the public utility of the internet archive lending practices, which, as the National Emergency Library examples are undeniably strong.
Assessing whether the public interest arguments are strong enough to overcome the weight of the market damage can be critical in deciding who wins this case.
The Internet Archive may also struggle to determine that its practices are simply an extension of the traditional role of libraries and beyond the boundaries of legitimate publisher markets.
In a case in 2013 involving a “second-hand” market for digital copies of music, US courts ruled that emulating analog distribution models was not sufficient to circumvent copyright infringement.
Access matters in the digital age
Underlying this recent dispute is a decades-old tension between the media industries that arose before and after the advent of the Internet.
Prior to the Internet, media and entertainment companies made money by selling individual copies of content (think books, CDs, DVDs).
But individual copies have lost value in the Internet age. Online, we seek access to content rather than ownership of copies of content.
In the music and video industry, subscription or ad-supported streaming services such as Spotify and Netflix have largely dominated.
However, the lawsuit against the Internet Archive shows that by 2022 we have not yet found the right legal and economic institutions for access-based book publishing models.
Finding a way forward
Entities such as Internet Archive have attempted to operate in the gray area between old and new by limiting access to the number of printed books in storage, for example.
Rather than striving to eliminate these gray areas, publishers should view these activities as evidence of unmet demand and a failure to be agile in times of crisis.
Publishers must adapt their distribution models to the needs of society.
Rather than establishing restrictive access conditions, they should work with libraries to build sustainable distribution models that ensure books are available to people who need access to our shared knowledge and culture.