A fight spurred by the Internet Archive throwing its online library’s doors open during the pandemic has drawn myriad industry and academic briefs into what’s now a broad fight over digital lending that seems destined for the US Supreme Court.
Four major publishers sued the digital repository in June 2020, alleging mass copyright infringement in response to its digital “National Emergency Library” during the Covid-19 lockdown. They also challenged the Internet Archive’s pre-existing “Open Library” system—adopted by several brick-and-mortar libraries—in which scanned books are lent to one borrower at a time, a restriction that it lifted during the emergency.
The case has already generated a rare flood of friend-of-the-court briefs into the district court proceedings, with amici primarily battling over the “controlled digital lending” (CDL) system. Both the Internet Archive and the publishers have asked a federal judge in New York for a quick win in the case, each moving for summary judgment in July.
Whatever the result, given the fundamental novelty of the case, attorneys say it’s hard to imagine either side backing down before exhausting all appeals in a fight over the future of what libraries can and can’t do.
“This is a novel case, 100% novel,” said intellectual property law professor Jason Schultz of New York University, who wrote a brief backing the Internet Archive. “Whatever the judge does will be important, a stake in the ground. But it’s going to be the beginning of the story, not the end.”
Authors and copyright groups claim the digital library represents brazen theft, arguing that the practice would decimate publishers’ and authors’ earnings if allowed to proliferate. But library groups and others backing the Internet Archive say publishers have no evidence of harm from a practice that mimics the public benefits of libraries, addressing needs that the publishers don’t.
Backers of each side accuse opposing amici of inventing copyright law to suit their own interests—and, at times, of bad faith arguments. But the case will likely hinge on a fair use analysis—a case-specific test—of unprecedented claims.
‘Substitute Our Judgment’
Hachette Book Group Inc., HarperCollins Publishers LLC, John Wiley & Sons Inc., and Penguin Random House LLC specifically listed 127 titles as having been infringed, books among the more than 1.3 million the Internet Archive has allegedly scanned into its repository. The suit attacked both the original standard CDL practice and the emergency library’s temporary removal of one-at-a-time restrictions to provide access at a time of shuttered libraries.
Advocates of CDL say itboosts research, learning, public retention of out-of-print works, and access for disadvantaged groups. Juliya M Ziskina, who wrote a brief for a pair of library groups, said the publishers and their supporters are conflating the market for e-books and CDL users, wrongly thinking of each book borrowed as a lost sale.
“Controlled digital lending doesn’t replace e-books,” Ziskina, a Library Futures Institute fellow, said.
But attorney Jacqueline Charlesworth, a former Copyright Office general counsel, said that position has “no basis in copyright law.” She noted that while the Copyright Office has studied revising the Copyright Act’s library exemptions, no law doing so has been enacted. Current law authorizes, for example, libraries to make up to three copies of a work “solely for the purpose of replacement.”
“What this is is an attempt by libraries and the Internet Archive that this should be the law, and we should substitute our judgment for the Copyright Act and congressional decision-making,” said Charlesworth, who wrote a brief signed by more than a dozen copyright scholars. “Students need books, but that doesn’t mean you can walk into a book store and steal them.”
But NYU’s Schultz said Congress created space for digital lending when it kept fair use flexible upon codifying the doctrine in the 1976 Copyright Act. Congress acknowledged it would be impossible to keep up with every implication of new technology, so it left courts wiggle-room to “look at it and figure it out,” Schultz said.
E-book Economy Erosion?
Courts analyze fair use on a fact-specific, case-by-case basis. The law requires consideration of at least four factors: the nature of the new work, nature of the original work, amount of the original used, and market effect on the original. Courts have called the market effect question the most important—and it’s a fierce point of contention between the Internet Archive and publishers.
Rachel Brooke Leswing of Authors Alliance said many authors themselves support CDL, and data suggests the practice might help writers generate interest in their books. She and others argue the publishers obscure sales information while claiming harm based on questionable presumptions, even amid record profits .
“Statistics are sparse, and that’s not an accident,” Leswing said. “The sales data from publishers—the nitty gritty economics—are not public.”
But Mary Rasenberger, CEO of the larger Authors Guild, calls harm to the market “common sense.” To tip that factor in their favor, publishers need only show “potential for market harm if it becomes widespread or unrestricted.” Expanding CDL beyond the small band of libraries using it, she said, would further erode an industry where “a lot of great books are not being written already, because people can’t afford to write them.”
“The more you chip into that economy, the smaller that ecosystem becomes,” Rasenberger said. “And the smaller it becomes, the less diversity it has, the more publishers are forced to sell sure best-sellers, celebrity books—not the kind that advances society.”
Charlesworth added that publishers license books to libraries already, and the Internet Archive is directly competing with that model. But Schultz said the publishers’ limited e-book licensing often forces the library to re-license the book, essentially allowing publishers to sell the same work again.
“This whole lawsuit is about whether publications should be paid two, three, four times for a book” sold to a library, Schultz said. “Copyright law is not about profit maximization.”
Lost in Digital Translation
Backers of the publishers point to Capitol Records v. Redigi, in which the US Court of Appeals for the Second Circuit found a website’s facilitating resale of music files was not fair use. Charlesworth said courts have rejected the idea that digitizing a work is fair use or covered by the first sale doctrine, which allows the purchaser of a product to resell that item. She said she doesn’t think the Internet Archive case is meaningfully different from Redigi.
“Redigi is largely ignored in Internet Archive’s briefing,” Charlesworth said. “It didn’t really take it on, because it doesn’t support what it’s doing.”
But supporters of the Internet Archive said Ridigi was a commercial entity rather than a nonprofit, fundamentally altering the “nature of the new work” factor. Redigi also never owned any rights to the work that it copied and transferred, as CDL lenders do.
The nonprofit nature of the Internet Archive also invokes a 1984 Supreme Court decision holding personal use of a VCR to record live TV to be fair use. In Sony v. Universal City Studios, the court said that while there’s a presumption of market harm from commercial use, if the purpose was noncommercial, the “likelihood must be demonstrated.”
“The Supreme Court has never touched that holding,” said Harvard University intellectual property law professor Rebecca Tushnet, who wrote a pro-Internet Archive brief on behalf of more than a dozen other law professors.
Charlesworth said Sony “is not remotely comparable,” and cited cases saying the burden in fair use analyses falls on the defendant, though none directly addressed burden shifting in noncommercial cases.
Schultz said Sony, while not analogous, showed it’s possible for unauthorized reproduction to be fair use. Tushnet said the digital shift has pushed fair use into “new territory,” as many materials wouldn’t be collectible and accessible unless libraries digitize and share them.
“This is where the equitable nature of fair use comes into play,” Tushnet said.