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On March 24, the Internet Archive (IA) announced the launch of the National Emergency Library (NEL). The project aims to make it easier for users to access digital copies of books during the COVID-19 pandemic.

However, their approach to making it easier was to simply remove the lending restrictions that were previously imposed on their ebooks. Where, at first, a book could only be “checked out” as many times as it was owned (at least according to the IA), those restrictions were lifted meaning that an infinite number of users could read a book even if only one copy was actually owned.

The initial coverage of the announcement was very positive, with news outlets praising the organization for taking the step. However, both the American Association of Publishers (AAP) and the Authors Guild came forward to release statements condemning the library as a scheme to commit copyright infringement under the guise of a library.

After testing the service out myself, I found that to be largely true. The site, for all of “library” language, operated very much like a low-quality ebook piracy site. It offers free, largely unrestricted, access to millions of electronic books.

On Monday, June 1st, publishers, all of whom are members of the AAP, took things a step farther and filed a lawsuit against the IA over its practices when it comes to electronic books.

However, the complaint, which you can find here, goes well beyond targeting the NEL and actually targets many of the IA’s behaviors including how it operates its library normally, how it obtains the books it scans and even how it finances itself.

Inside the Complaint

Publishers Sue Internet Archive Over National Emergency Library Image

Though the National Emergency Library may have been what provoked the lawsuit, the complaint itself is much broader. Ultimately, it targets the entirety of the IA’s digital lending practices, including the scanning of physical books to create digital books to lend.

The IA has long held that its practices are covered under the concept of controlled digital lending (CDL). However, as the complaint notes, the idea has not been codified by a court and is, at best, very controversial. According to the complaint, the practice of scanning a physical book for digital lending, even when the number of copies is controlled, is an infringement.

The complaint says that fair use does not protect wholesale copying and distribution, the right of first sale only gives the right to distribute an existing copy, not make a new one, and the concept of format-shifting does not grant the user the right to distribute the format-shifted copy as it is limited to personal use. As such, even under the best of circumstances, the publishers argue that such scanning and digital lending is unlawful.

In addition to that, the publishers take issue with many aspects of the IA’s operation. Those include:

  1. IA is Paid to Scan Books: According to the lawsuit, the IA has been paid over $25 million since 2011 to scan books for libraries. (Note: In spite of this, the lawsuit explicitly states no “public, university or academic libraries” are defendants.)
  2. The Use of Better World Books: In 2019 a company owned by Brewster Kahle, who also operates the IA, purchased the used book site Better World Books. According to the lawsuit, the IA uses this relationship to acquire books to scan without paying for them through a “Library Discards & Donations” program.
  3. Allowing Users to “Sponsor” Books to Be Infringed: The IA allows users to donate money to “sponsor” the acquisition of books they do not have. In the case of Back to the Batcave by Adam West, the IA had raised $93.12, well over the amount needed to purchase the book. The complaint calls this a “breathtakingly brazen” scheme where users donate far more than the value of a book to encourage and enable it to be infringed.
  4. Locking Away Print Books: According to the complaint, the IA obtains many of its books from struggling or defunct libraries and, after scanning the books, will simply lock them away. According to the complaint, this is another part of how the IA avoids paying authors by maintaining the facade of controlled digital lending.

Basically, the lawsuit is targeting the entirety of the IA’s operation when it comes to the scanning and “lending” of in-copyright books. This is in comparison to most actual libraries, which license ebooks from publishers for distribution, usually through wholesalers or aggregators.

In the end, the complaint only identifies two causes of action: Direct Copyright Infringement and Secondary Copyright Infringement. For those, the publishers are seeking a declaration that the IA’s practices are infringing, an injunction barring the IA from distributing in-copyright works and damages.

Overall, it’s a simple complaint that paints the Internet Archive as an organization that has engaged in mass infringement well before the NEL but pointing out that change as especially egregious.

Thoughts on the Case

The complaint is interesting for its breadth. It isn’t just tackling the NEL, but the entire concept of scanning books and controlled digital lending. However, the publishers were in a bind here. They couldn’t ignore the egregiousness of the NEL but they couldn’t sue over just that for risk of unofficially codifying CDL.

The fact that the IA had been engaged in its CDL strategy for so long without litigation says that, at the very least, it wasn’t a priority for publishers. However, with the NEL, it moved up in the priority list and that’s prompted a lawsuit that challenges far more than the NEL itself.

Some have said that this is a “high risk” lawsuit for the publishers and it is easy to see why. The stakes are certainly high as the lawsuit targets issues of first sale, format-shifting, digital lending and much more. It’s a fight that publishers were probably not eager to pick, but felt pushed into it by recent actions.

This is similar to a lot of other areas where there may be technical infringement, but creators and rightsholders choose not to fight. A good example there is fan fiction, where creators have largely tolerated non-commercial fan creations but have had to step up legal battles as both money and prominence have grown.

If the goal of the IA was to bring things to a head, they have certainly succeeded. However, as I said in my original post on the National Emergency Library, I don’t like their odds. Even IF CDL is upheld as valid (which is dubious at best under the current law), the NEL clearly violated the principles of CDL by distributing and “lending” more books than were owned.

The IA almost certainly realizes the uphill battle they face here and the goal likely isn’t to win in court but to get a win more broadly. Whether it’s to eke out a precedent that helps CDL or to bring about legislation that makes it possible, that remains to be seen.

All in all, there’s a lot more at stake in this battle than just the NEL. This could wind up being one of the most important copyright cases in a long, long time.

Bottom Line

Whether you agree or disagree with the IA and the NEL, this is going to be a lawsuit to watch. The nature of this case and the participants in it means that there are very important and very broad legal questions being addressed and the implications of this case are likely to go far beyond the industry.

Though time will tell if this is a landmark case, it has all of the signs that it could be.

So, if you have any interest in copyright, this is an important one to watch and one to realize may not be over when the gavel comes down. The fallout from this case will likely go well beyond the courtroom and may spill into public debates about what copyright should do, not what it currently does.

The story is only beginning.

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