#he also was behind the lawsuit to destroy the internet archive

[novakspector]

[tennesseeprelawland]

Internet Archive Shuts Down Its National Emergency Library After Publishers Threaten Lawsuit

By Abigail Morici, Rhodes College Class of 2021

July 1, 2020

In response to the pandemic, the Internet Archive launched its temporary National Emergency Library (NEL) in Marchto provide a collection of over one-million free books online without any restrictions. The NEL had many supporters—teachers, librarians, and parents alike. Brewster Kahle, Digital Librarian of the Internet Archive, called the NEL “the Library at everyone’s fingertips.” [1] However, the non-profit had to end its National Emergency Library on June 16, two weeks earlier than planned, to stave off a lawsuit from a group of publishers.

These publishers—Hachette Book Group, Harper Collins Publishers, John Wiley & Sons, and Penguin Random House—filed the lawsuit in federal court in Manhattan. They accused NEL of “‘willful mass copyright infringement’” and accused that the service was depriving authors and publishers of revenue during an economic crisis. [2] The publishers, according to Good E-Reader, “are looking to fine the company $150,000 per week that the system was online.” [3]

Typically, the Internet Archive scans physical books and offers the scans online for a period of fourteen days to one borrower at a time, but through the NEL, it suspended all restrictions until the end of the pandemic or through June 30, 2020—whichever was later. [1, 2]The Internet Archive wrote on its blog that the goal of the NEL was to:

“ensur[e] that students will have access to assigned readings and library materials that the Internet Archive has digitized for the remainder of the US academic calendar, and that people who cannot physically access their local libraries because of closure or self-quarantine can continue to read and thrive during this time of crisis, keeping themselves and others safe.”

In its announcement of the service, the archive also encouraged readers to buy books if they were able. [1]

The archive argued that their emergency library program “was necessary—and legally justified—because the pandemic was denying the public access to millions of books that are locked in closed libraries.” However, publishers believe that the pandemic was not justification for the NEL. The Authors Guild, another opponent of the NEL, wrote,

“IA [Internet Archive] is using a global crisis to advance a copyright ideology that violates current federal law and hurts most authors. It has misrepresented the nature and legality of the project through a deceptive publicity campaign. Despite giving off the impression that it is expanding access to older and public domain books, a large proportion of the books on Open Library are in fact recent in-copyright books that publishers and authors rely on for critical revenue.” [4]

Douglas Preston, the president of The Authors Guild, wrote in an op-ed for TheNew York Times:

“[The NEL] could be a career-destroying time for some authors, many of whom are struggling to make a living … [The Internet Archive] has thrown open its digital archive to everyone, allowing an unlimited number of people from anywhere in the world to download the same digital file. This is precisely how book-piracy websites operate.” [5]

In his argument against the Internet Archive and its NEL, Preston pointed to the case of Capitol Records v. ReDigi (2012). [4] Capitol Records (known for recording Frank Sinatra’s “Come Fly with Me” and The Beatles’ “Yellow Submarine) claimed that ReDigi, a web-based service that provided digital music files for users to buy and sell at a smaller price than iTunes, infringed on its copyright. The court found that ReDigi did in fact violate the copyright, and that the first sale doctrine, which allows for the resale or disposal of a copyrighted work, does not apply to a digital music file. [6]

Preston believes that the court’s opinion in this case “established principles of digital copyright infringement that should clearly apply to all copyrighted works, including books.” [5] The Authors Guild previouslyreleased a statement that the case “emphasized a crucial distinction between resales of physical media and resales of digital content, noting that unlike physical copies, digital content does not deteriorate from use and thus directly substitutes new licensed digital copies.” [7]

On the other hand, in an article on his website, Kyle Courtney, the Copyright Advisor for Harvard University, pointed to the fact that the ReDigi resales were meant as substitutes for the original mp3s since they were sold by a for-profit company and competed with the original files in the market. In contrast, because libraries are not commercial for-profit companies, they do not sell the books or loan more books than they own, so the online books do not compete with the original source in the market. “The books, [libraries] own, via first sale, are not licensed mp3s,” he wrote. “There is clearly a distinguishable analysis here.” [8]

Others have pointed to Authors Guild v. Google, Inc.(2015), in which the plaintiffs sued Google for copyright infringement. Google was in the process of making digital copies of tens of millions of books through its Library Project and Google Books project without permission of rights holder. Google also had “established a publicly available search function,” which the plaintiffs believed constituted infringement of copyrights. The court found that Google had not infringed on copyright-protected works because “the purpose of the copying was highly transformative [meaning, that the use added a new purpose/character and does not substitute for the original use of the work], the public display of text was limited, and the revelations did not provide a significant market substitute for the protected aspects of the originals, and defendant's commercial nature and profit motivation did not justify denial of fair use.” [9, 10] In short, Google’s book-search program offered public benefits and should be protected under the legal doctrine of fair use, which permits the unlicensed use of copyright-protected works certain types of use, such as teaching, reporting, and research. [9,10]

When speaking back to the potential lawsuit involving Internet Archive, the NEL did not quite fall under the doctrine of fair use in the same way as established in the Authors Guild v. Google, Inc, though it operates under a similar scanning format.The NEL provided the full text, not a limited portion as Google. In instances where large portions of a copyrighted work are included, a court is less likely to find fair use; however, there have been instances where even with large portions fair use have been found. [10]

Regardless, the Internet Archive has taken down the NEL, which has sparked the controversy and the lawsuit, but those against the NEL are also against the format of the Internet Archive in general,pointing out that the non-profit, unlike traditional libraries, does not pay licensing fees. [11]Indeed, libraries do pay licensing fees for e-books, not for physical books that were purchased or donated since those would fall under the first sale doctrine. [12] Since the Internet Archive’s scans are online, publishers feel as though the same licensing fees that are paid for e-books should apply to these scans, but the Internet Archive, which is a member of the American Library Association,has been upholding controlled digital lending since 2011, which it has returned to since shutting down the NEL. [11, 13]

Controlled digital lending (CDL)is “the digital equivalent of traditional library lending,” whereby libraries digitize a book it owns and lends out the copy to one user at a time in the place of the physical book. [14] Those who defend CDL claims that its legality falls under the First Sale and the Common Law Exhaustion Principle as well as fair use doctrine. [15] CDL follows three principles as written on its website:

1.     A library must own a legal copy of the physical book, by purchase or gift.

2.     The library must maintain an “owned to loaned” ratio, simultaneously lending no more copies than it legally owns.

3.     The library must use technical measures to ensure that the digital file cannot be copied or redistributed. [14]

According to this principle, the Internet Archive believes its operations are legal, and it is not alone. Major library systems like the California State University library and the Boston and San Francisco public libraries also rely on CDL. [13]However, opponents of CDL suggest that the theory is not legal, arguing Capitol Records v. ReDigi had established such digitization as illegal. The Author’s Guild, which started a petition to end CDL, wrote that CDL “competes with the market for legitimate ebook licenses, ultimately usurping a valuable piece of the market from authors and copyright holders.” [7]

In response to this frequent claim of losing “a valuable piece of the market,”Kyle Courtney wrote on his website:

To the extent there is a “market harm,” it is one that is already built into the transaction and built into copyright law: libraries are already legally permitted to circulate and loan their materials. The authors have been paid (as have the publishers) in that first transaction. [8]

Those, who support the application of the first sale of doctrine in the digital scape, believe that those who oppose CDL are motivated purely by the greed of capitalism. “Licensing culture is out of control,” Courtney wrote. In a similar fashion, Mike Masnick, the editor of the Techdirt blog, wrote:

It’s been said many times over that if libraries did not currently exist, there’s no way that publishers would allow them to come into existence today. Libraries are, in fact, a lovely and important artifact of a pre-copyright time when we actually valued knowledge sharing, rather than locking up knowledge behind a paywall. [16, 17]

Since closing its NEL and returning to CDL, the Internet Archive has been soliciting testimonials about how the NEL has helped during the pandemic. [18]Brewster Kahle wrote, “The complaint [against the NEL] attacks the concept of any library owning and lending digital books, challenging the very idea of what a library is in the digital world.” [19] Still, the idea of a library in the digital scape remains relatively unchartered in the legal world as technology and digitization add to complications surrounding copyright and licensing. There remain few cases that have established precedents as to how situations like these should be approached.

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[1] Freeland, Chris. “Announcing a National Emergency Library to Provide Digitized Books to Students and the Public.” Internet Archive Blogs, 24 March 2020, http://blog.archive.org/2020/03/24/announcing-a-national-emergency-library-to-provide-digitized-books-to-students-and-the-public/.

[2] Harris, Elizabeth A. “Publishers Sue Internet Archive Over Free E-Books.” The New York Times, 1 June 2020, https://www.nytimes.com/2020/06/01/books/internet-archive-emergency-library-coronavirus.html.

[3] Kozlowski, Michael. “Internet Archive Ends National Emergency Library Program.” Good E-Reader, 12 June 2020, https://goodereader.com/blog/digital-library-news/internet-archive-ends-national-emergency-library-program.

[4] “Internet Archive’s National Emergency Library Harms Authors.” The Authors Guild, 27 March 2020, https://www.authorsguild.org/industry-advocacy/internet-archives-uncontrolled-digital-lending/.

[5] Preston, Douglas. “The Pandemic is Not an Excuse to Exploit Writers.” The New York Times, 6 April 2020, https://www.nytimes.com/2020/04/06/opinion/coronavirus-authors.html.

[6]Capitol Records, LLC, Plaintiff, v. ReDigi, Inc., Defendant. https://scholar.google.com/scholar_case?case=11987243262728384575&q=Capitol+Records+v.+ReDigi&hl=en&as_sdt=8000006&as_vis=1

[7] “Controlled Digital Lending Is Neither Controlled nor Legal.” The Authors Guild, 8 January 2019, https://www.authorsguild.org/industry-advocacy/controlled-digital-lending-is-neither-controlled-nor-legal/.

[8] Courtney, Kyle K. “Libraries Do Not Need Permission to Lend Books: Fair Use, First Sale, and the Fallacy of Licensing Culture.” Kyle K. Courtney, 18 May 2020, https://kylecourtney.com/2020/05/18/libraries-do-not-need-permission-fair-use-first-sale-and-the-fallacy-of-permission-culture/.

[9] “Authors Guild v. Google, Inc. – 804 F.3d 202 (2d Cir. 2015).” Lexis Nexis, https://www.lexisnexis.com/community/casebrief/p/casebrief-authors-guild-v-google-inc.

[10] “More Information on Fair Use.” Copyright.gov, April 2020, https://www.copyright.gov/fair-use/more-info.html.

[11] Harris, Elizabeth A. “Internet Archive Will End Its Program for Free E-Books.” The New York Times, 11 June 2020, https://www.nytimes.com/2020/06/11/books/internet-archive-national-emergency-library-coronavirus.html.

[12] Lauren. “Libraries and eBooks: An Introduction.” Denver Public Library, 30 October 2019, https://www.denverlibrary.org/blog/books-research/lauren/libraries-and-ebooks-introduction.

[13] Freeland, Chris. “Controlled Digital Lending Takes Center Stage at Library Leaders Forum.” Internet Archive Blogs, 31 October 2019, https://blog.archive.org/2019/10/31/controlled-digital-lending-takes-center-stage-at-library-leaders-forum/.

[14] “Controlled Digital Lending Fact Sheet.”Controlled Digital Lending by Libraries, https://controlleddigitallending.org/faq.

[15] “Position Statement on Controlled Digital Lending.” Controlled Digital Lending by Libraries, September 2018, https://controlleddigitallending.org/statement.

[16] Masnick, Mike. “Publishers and Authors Misguided Freakout Over Internet Archive’s Decision to Enable More Digital Book Checkouts During a Pandemic.” Techdirt, 31 March 2020, https://www.techdirt.com/articles/20200330/18125844202/publishers-authors-misguided-freakout-over-internet-archives-decision-to-enable-more-digital-book-checkouts-during-pandemic.shtml.

[17] Masnick also wrote: “One important thing to note: the scans of books that are part of the CDL effort are not great. They are images of actual book pages, and not anything like ebooks that are designed to be read nicely on a Kindle or whatnot. No one would choose a CDL book over a regular ebook if given the choice, because the experience is not nearly as good.”

[18] Freeland, Chris. “Impacts of the Temporary National Emergency Library and Controlled Digital Lending.” Internet Archive, 11 June 2020, http://blog.archive.org/2020/06/11/impacts-of-the-temporary-national-emergency-library/.

[19] Kahle, Brewster. “Temporary National Emergency Library to Close 2 Weeks Early, Returning to Traditional Controlled Digital Lending.” Internet Archive Blogs, 10 June 2020, http://blog.archive.org/2020/06/10/temporary-national-emergency-library-to-close-2-weeks-early-returning-to-traditional-controlled-digital-lending/.

Photo Credit: The Internet Archive