Earlier this month, the Internet Archive asked a US court to end a trial filed against it by four major book publishers.
The Internet Archive is a nonprofit organization founded in 1996 that lends digital copies of books, music, movies, and other digitized content to the public. This Goals to support print disabled people, preserve digital content for future generations and democratize access to knowledge.
The publishers claim that the Internet Archive’s digital lending practices constitute willful copyright infringement. The authors have also complained the site hosts pirated content.
The Internet Archive says it’s behaving like an ordinary library, because he only lends digital copies of the physical books he owns. His supporters at the Electronic Frontiers Foundation say publishers simply want “control how libraries can lend the books they own”.
The National Emergency Library
Editors were particularly concerned about the “National Emergency Library” set up by Internet Archive in March 2020. This temporary project aimed to allow teachers to access digital learning materials in the face of widespread library closures due to the COVID-19 pandemic.
In June 2020, publishers Hachette, Penguin Random House, HarperCollins and John Wiley & Sons filed a copyright infringement claim. The publishers appear to want to shut down not just the National Emergency Library, but all of the Internet Archive’s book lending practices.
The publishers claim that the Internet Archive engages in gross and willful copyright infringement by lending digital books without authorization or payment to publishers.
The Internet Archive argues that because it only allows one person at a time to borrow an eBook, it only replicates regular library lending. However, this restriction has been temporarily relaxed for the National Emergency Library.
Ordinary library loan does not require payment to publishers. Once a library buys a book, it is free to lend it to its members.
The publishers argue that digital books are not equivalent to physical books and should be treated differently under the law.
Copyright already seen?
Didn’t Google already win the e-book argument years ago? Yes and no.
Google began digitizing library books in 2002. In 2005, book publishers and authors brought a highly publicized trial against Google for copyright infringement, which took a decade to resolve.
In the case against Google, US courts ruled that making full copies of books and displaying excerpts of those books to the public in the Google Books database constituted “fair use.”
In deciding in favor of Google, the courts paid particular attention to the historical purpose of copyright, which is to serve the the public interest in access to knowledge.
A matter of markets
But Google Books’ move doesn’t mean book publishers will again lose to the Internet Archive.
In the United States, when deciding whether a use is fair or not, courts must consider the extent to which the copyright owner’s markets are being harmed.
Since book publishers often lend e-books for commercial purposes (including to libraries), Internet archives could be seen as harming this aspect of the publishers’ market.
You could say that by providing online access to books in their entirety, the Internet Archive is doing for free what publishers do for a fee.
This is different from the Google Books decision, in which the provision of access to excerpts of books in Google’s database was considered likely to improve the market for books.
What counts as fair use?
However, fair use flexibility is something the Internet Archive has on its side.
The court has the opportunity to assess the public interest of Internet Archive’s lending practices which, like the National Emergency Library illustrious, are undeniably strong.
Assessing whether the public interest arguments are strong enough to overcome the weight of market harm can be key to deciding who wins this case.
The Internet Archive may also have difficulty establishing that its practices are merely an extension of the traditional role of libraries, and beyond the boundaries of legitimate publisher markets.
In a case in 2013 involving a “second-hand” market for digital copies of music, US courts have decided that emulation of analog broadcast models is not enough to escape copyright infringement.
Access matters in the digital age
Behind this recent dispute lies a decades-old tension between the media industries, born before and after the advent of the Internet.
Before the Internet, media and entertainment companies made money by selling individual copies of content (think books, CDs, DVDs).
But individual copies have lost their value in the internet age. Online, we seek access to content rather than ownership of copies of content.
In the music and video industries, subscription or ad-supported streaming services such as Spotify and Netflix have largely prevailed.
However, the lawsuit against the Internet Archive shows that we have not yet, in 2022, found the right legal and economic frameworks for access-based book publishing models to thrive.
Find a way forward
Entities like the Internet Archive have tried to operate in the gray area between old and new, such as limiting access to match the number of printed books stored.
Rather than aiming to eliminate these gray areas, publishers should view these activities as evidence of unmet demand and a lack of agility in times of crisis.
Publishers must adapt their distribution models to the needs of society.
Rather than instituting restrictive access conditions, they should work with libraries to build sustainable models of dissemination that ensure books are available to people who need access to our shared knowledge and culture.