Four American publishers — Penguin Random House, Hachette,
HarperCollins and Wiley — have sued Internet Archive for its Open
Library in general and its National Emergency Library in particular. The
latter had suspended the waitlists on its digital lending mechanism
until June 30, 2020 or the end of USA’s national emergency (whichever is
later), and made its 1.4 million digital books can be digitally
borrowed by multiple readers simultaneously. The publishers are seeking
statutory damages on each work that has been infringed, damages that the
publishers have sustained because of the infringement and profits that
Internet Archive has earned through such acts. The publishers want the
court to declare Open Library’s practices as “wilful copyright
infringement” and issue a permanent injunction against Internet Archive
that also orders it to destroy all “unlawful” copies.
They filed a
lawsuit in the Court of Southern District of New York on June 1.
Publishers Marketplace first reported this development.
four publishers are members of the Association of American Publishers
which, according to its website, represents publishers in the US “on
matters of law and policy”. In their petition, they clarify that this is
not about books that the Internet Archive has permission to distribute,
or are in public domain, or about the “occasional transmission of a
title under appropriately limited circumstances”.
What is the National Emergency Library?
a typical, non-COVID-19 affected day, the Internet Archive, through its
Open Library, allowed users to digitally borrow a book for two weeks.
The number of borrowers were determined by the number of
physical/digital copies of the book that Internet Archive had legally
acquired (either through purchase or donation). Thus, if it had acquired
6 books and the book was requested by 7 people, the seventh person
would be placed on a waitlist. This is the idea of controlled digital
lending that multiple libraries across the US support.
the pandemic and the consequent national lockdown in the US, the
Internet Archive removed the waitlists so that even if they have only 6
legal physical/digital copies of the book, more than 6 people could
borrow it. This NEL is in effect until June 30 or until the national
lockdown in the US ends, whichever is later.
It is this National Emergency Library that the publishers have filed a lawsuit against.
is an insurmountable competitor”: Since Internet Archive copies and
distributes books that have been recently published and makes them
available for free, it acts as “a direct substitute for established
markets”. This “devalues” the book market and publishing process. It
also undercuts the work done by and donations made to public libraries.
Archive exploits the work done by publishers: Publishers, not Internet
Archive, do the hard work of researching, writing and publishing works
that are ultimately used by educators, students and other readers.
Internet Archive does not contribute at any of these steps or to the
scholarship itself, nor invests in the “expenses that go into publishing
Controlled Digital Lending is an invented
theory and has no basis in law: Conflation of physical and e-books is
“fundamentally flawed” as e-books’ distribution is much easier, and they
do not degrade over time. This is why, publishers have different
distribution models for e-books, including for lending e-books through
libraries, and use digital rights management technology (DRM) to
restrict the use and further distribution of e-books.
Archive’s physical copies of the book are not meant to be read. IA
acquires entire libraries through its “acquisition program” to build its
physical archive that is not read but only “exists to rationalize, or
provide the predicate for, IA’s argument that there is a one-to-one
correlation between print copies legitimately owned and their
illegitimate ebook scanned copies”. The physical copies are stored in
shipping containers owned by IA in Richmond, California.
books under copyright are available to read and download for free:
Books such as To Kill a Mockingbird, which is still under copyright, are
available to be read for free. They do not have to be borrowed.
digitisation and distribution by Internet Archive is illegal: Fair use
does not allow for the “systematic mass copying or distribution of
entire books”, something that publishers already provide for “through
lawful and established channels”. Other large-scale book digitisation
projects, such as Google’s and HathiTrust’s, did not make entire books
freely available online.
digitisation violates Section 109 of the American Copyright Act:
Internet Archive’s low quality scans mean that IA is distributing more
than its own physical copy of the book.
call Internet Archive a “non-profit”: The petitioners have said that
Internet Archive is a “highly commercial enterprise” that has earned
over $100 million that fund its “infringing activities”. Some of the
“services” that it sells to clients (including libraries) include
“industrial-scale book scanning services”.
is “an unlicensed aggregator and pirate site”: The Open Library is not
an accredited library. By calling itself the Open Library, it
“misappropriates the goodwill that libraries enjoy and have legitimately
Internet Archive “opportunistically seized”
upon the pandemic to launch NEL, especially because publishers and
libraries provided free e-book copies to library patrons, and publishers
donated “thousands of print books”, worked closely with schools,
colleges and teachers “to ensure access to and availability of books
necessary for online learning”. Libraries also allowed new patrons to
sign up for library cards online.
Despite notices in the
past, Internet Archive has continued to infringe on copyright:
HarperCollins had sent IA a written notice in 2018 that the Open Library
infringed upon HC’s copyright, but IA persisted.
buy the book directs users to IA’s founder’s website: The “Buy this
book” link directs to Better World Books, a largely used online
bookseller “owned by a shell company controlled by IA founder, Brewster
Kahle”. It does not link out to the publishers’ websites or the
authors’. This website also functions as a feeder for Internet Archive
since Better World Books acquires “mass quantities of used print book”
as “library Discards & Donations”.
Sponsoring a book
is a means to acquire books that IA wants to infringe upon: Through the
sponsorship programme, IA asks users to “sponsor” books that it does not
have in its collection. Through the sponsorship money, IA buys a
physical copy of the book, scans it and uploads a digital copy to the