Internet Archive Seeks Summary Judgment in Federal Lawsuit by Publishing Companies


SAN FRANCISCO—The Internet Archive has asked a federal judge to rule in its favor and end a sweeping lawsuit, brought by four major publishing companies, that seeks to criminalize library lending.

The Internet Archive, headquartered in San Francisco, is a 501(c)(3) nonprofit library that preserves and provides access to cultural artifacts of all kinds in electronic form. The motion for summary judgment, filed Thursday in the U.S. District Court for the Southern District of New York by the Electronic Frontier Foundation (EFF) and Durie Tangri LLP, says the Archive’s Controlled Digital Lending (CDL) program is legal fair use that preserves traditional library lending in the digital world.

The brief discusses how the Internet Archive advances the goals of copyright law by promoting public access to knowledge and facilitating the creation of new creative and scholarly works. The Internet Archive’s digital loan hasn’t cost publishers a dime in revenue; In fact, concrete evidence shows that the Archive’s digital loan does not and will not harm the market for books.

“Should we prevent libraries from owning and lending books? No,” said Brewster Kahle, founder and digital librarian of the Internet Archive. “We need libraries to be independent and strong, now more than ever, at a time of misinformation and challenges to democracy. That’s why we defend the rights of libraries to serve our users where they are, online.

Through CDL, the Internet Archive and other libraries make and lend digital scans of printed books from their collections, subject to strict technical controls. Every book loaned through CDL has already been purchased and paid for, so authors and publishers have already been fully compensated for those books. Nonetheless, publishers Hachette, HarperCollins, Wiley, and Penguin Random House sued the Archive in 2020, falsely claiming that CDL violated their copyrights.

“Publishers are not seeking protection against infringements of their existing rights. They are seeking a new right outside of US copyright law: the right to control how libraries can lend the books they own,” said EFF legal director Corynne McSherry. “They shouldn’t be successful. The Internet Archive and the hundreds of libraries and archives that support it are neither hackers nor thieves. They are librarians, striving to serve their customers online as they have for centuries in the brick-and-mortar world. Copyright law does not preclude a library’s right to lend its books to its patrons, one at a time.

Authors and librarians speak out in favor of the Internet Archive.

“In the consuming tide of entropy, the Internet Archive brings a measure of order and permanence to knowledge,” said author Tom Scocca. “Beyond the normal lifetime of circulation of a writing – or beyond the lifetime of entire publications – the Archive preserves and maintains it.”

“The library’s practice of controlled digital lending was a lifeline at the start of the pandemic and has since become an essential service and public good,” said Benjamin Saracco, librarian of the research and digital services faculty. in a medical and hospital university library in New Jersey. “If publishers succeed in shutting down the Internet Archive’s lending library and preventing all libraries from practicing controlled digital lending, libraries of all kinds and the communities they serve will suffer.”

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