Internet Archive Responds To Publishers’ Lawsuit, Claiming “Every Digital Learner’s Access To Library Books” Is At Stake

In a blog post on Wednesday, Internet Archive described its answer, which was filed on Tuesday in response to major publishers’ lawsuit against the company to end its Controlled Digital Lending (CDL). Internet Archive suspended the National Emergency Library early following the suit, but Internet Archive has asserted that “[c]opyright law does not stand in the way of libraries’ rights to own books, to digitize their books, and to lend those books to patrons in a controlled way.”

The Internet Archive “does what libraries have always done: buy, collect, preserve, and share our common culture.” The Internet Archive agreed with the plaintiffs that “[b]ooks are a cornerstone of our culture and system of democratic self-government” and “play a critical role in education.” However, Internet Archive said they have accomplished this by democratizing access to this information.

According to Internet Archive, CDL is “the digital equivalent of traditional library lending” because they are fundamentally the same. Libraries are able to lend a digitized version of a lawfully acquired physical book through CDL only if the physical copy of the book does not circulate and the digital copies are protected from redistribution. Internet Archive has used this lending method for more than nine years. Internet Archive claimed that CDL is crucial for the upcoming fall semester as schools, from K-12 to universities are solely remote or are limiting communal spaces, such as libraries, inhibiting students’ abilities to gain access to books as a result of the COVID-19 pandemic. Consequently, Internet Archive stated that students and teachers may have trouble accessing textbooks or primary sources without the library. It was also necessary in the early days of the COVID-19 pandemic, “in response to urgent pleas from teachers and librarians whose students and patrons had been ordered to stay at home.” In response, the Internet Archive established the National Emergency Library to “temporarily permit lending that could have exceeded the one-to-one owned-to-loaned ratio,” noting that “digital lending was the only practical way to get books to those who needed them.” However, the National Emergency Library has ended and the Internet Archive has returned to the traditional CDL model.

Furthermore, the Internet Archive stated that “[c]ommercial ebooks, while useful, only cover a small fraction of the books in our libraries. As we launch into a fall semester that is largely remote, we must offer our students the best information to learn from – collections that were purchased over centuries and are now being digitized. What is at stake with this lawsuit? Every digital learner’s access to library books. That is why the Internet Archive is standing up to defend the rights of hundreds of libraries that are using Controlled Digital Lending.”

 The Internet Archive added that it has honored publishers and authors’ requests to deny public access to their works through CDL, making a concerted effort to ensure its uses are lawful. Internet Archive claimed that its CDL program is sheltered by the fair use doctrine and traditional library protections, because these serve the public interest and every book has already been published, and most are out of print. Thus, Internet Archive argued there is no effect on the market because these books have already been paid for by the libraries that own them. As a result, it claimed that it has not engaged in copyright infringement.

Additionally, Internet Archive declared that the lawsuit has sought the destruction of 1.5 million digital books available in its library. They claimed that “[t]his form of digital book burning is unprecedented and unfairly disadvantages people with print disabilities.” For example, e-books in accessible formats are useful for the blind. Internet Archive asserted that its library has content accessible to the blind and other print disabled communities in addition to those without such disabilities. Notably, “[i]f the publishers are successful with their lawsuit, more than a million of those books would be deleted from the Internet’s digital shelves forever.” 

Internet Archives has denied the direct and secondary copyright infringement allegations. Internet Archive added the following affirmative defenses: failure to state a claim on which relief can be granted; Fair Use Doctrine; First Sale Doctrine; safe harbor; not entitled to statutory damages; and that the plaintiffs are barred by the statutes of limitations and doctrine of laches. Internet Archive has sought for the Southern District of New York to deny the plaintiffs’ entire prayer for relief, to dismiss the complaint with prejudice and enter judgment in favor of Internet Archive, an award for attorneys’ fees and costs and other relief.

In the blog post, Internet Archive has called on the four publishers, Hachette, HarperCollins, Wiley, and Penguin Random House, to help Internet Archive resolve the issue while allowing people to access this content during the pandemic.

Internet Archive is represented by Durie Tangri LLP and the Electronic Frontier Foundation. The publishers are represented by Davis Wright Tremaine LLP and Oppenheim + Zebrak, LLP.