Four publishers have sued the non-profit organisation for making 1.4 billion books freely available for lending.

Book and computer technology in library

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Internet Archive announced last week it would end its program of offering free, unrestricted copies of e-books to readers during the coronavirus pandemic due to being sued by publishers for copyright infringement.

Since March, Internet Archive has made more than 1.4 million books available online without restrictions, meaning that an unlimited amount of people could read one book at the same time, even if Internet Archive only owned one copy of that book. 

The non-profit organisation had planned for the unrestricted lending service, dubbed the National Emergency Library (NEL), to be open through to 30 June 2020, “or the end of the US national emergency, whichever is later”. 

“We moved up our schedule because … four commercial publishers chose to sue Internet Archive during a global pandemic,” Internet Archive wrote.

“However, this lawsuit is not just about the temporary National Emergency Library. The complaint attacks the concept of any library owning and lending digital books, challenging the very idea of what a library is in the digital world.”

The lawsuit against Internet Archive — raised by Hachette, HarperCollins, Wiley, and Penguin Random House — alleges that not only the NEL itself, but the way Internet Archive operates is a wholesale copyright violation scheme. 

“IA is engaged in willful mass copyright infringement. Without any licence or any payment to authors or publishers, IA scans print books, uploads these illegally scanned books to its servers, and distributes verbatim digital copies of the books in whole via public-facing websites,” the publishers wrote in their complaint.

“With just a few clicks, any Internet-connected user can download complete digital copies of in-copyright books from Defendant.”

Isabella Alexander, former Newton Trust Law lecturer at the University of Cambridge, told TechRepublic that Internet Archive’s NEL is “essentially just copying books” and making them available to people without paying the owners of the copyright for that right.

“It’s prima facie infringement,” Alexander said.

“There are exceptions to copyright infringement in both the US and Australia, but it’s very unlikely that they would apply in the USA where they have this defense of fair use, which was successful in the Google Books case. But that was because they were only making small amounts available — here, they’re making the entire book available. [Internet Archive] is not transformative in any way, they’re clearly competing with the market of the copyright owners.”

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Prior to the NEL, Internet Archive followed a “controlled digital lending” (CDL) model, which allowed patrons to digitally borrow a book for each physical copy that Internet Archive had in stock. Patrons would then be added to a waiting list if the book was checked out.

Kimberlee Weatherall, a professor at the University of Sydney Law School, said the case for infringing copyright was less clear when it came to lending books under a CDL model as its aim is to mimic libraries in how they lend physical books. 

“The significant exception that operates in America is the fair use exception … fair use is open-ended, which means that new purposes like ‘we have a public health emergency and we need to make copies’,” Weatherall explained.

“You could try it, you could make the argument whether it would succeed would depend on whether the court decided that this was a true impact on the interest of the copyright owner, whether the purpose was a public good sort of purpose.” 

Internet Archive operates differently to public libraries, however. It acquires a book through either donations or purchasing it, before then scanning the book and putting it online. Traditional libraries, meanwhile, pay licensing fees to publishers and agree to make books available for a certain number of times before repurchasing a licence to continue to lend digitally. 

According to Alexander, lending books in this manner would still appear to not be legal as a copy of the works are still being made without permission from the author or publisher. 

“There’s nothing in the statute in the US that says if you own the book, you’re allowed to make a copy of it. You only own the physical object, but the copyright is the right to make productions, which you don’t own just because you own a physical copy of a book,” Alexander said.

The Authors Guild, the US’ oldest writers’ organisation, has labelled Internet Archive’s decision to make in-copyright books freely available “appalling”.

“Bookstores are closing, forced to lay off staff, small publishers are already hurting so badly that some fear going under if the shut[d]own lasts too long. Everyone is working to support one another and especially the bookstores, so vital to our literary culture,” the Authors Guild wrote.

“Rather than supporting authors and book publishing, Internet Archive is undermining it when the industry faces a crisis of epic proportions.”

The Copyright Alliance also criticised Internet Archive’s National Emergency Library as a “vile” scheme aimed at denying authors their copyright protection and subsequent payments.   

But Alexander said if the publishers were to progress the case all the way to a binding court decision, it would be a disappointing outcome as it could stunt the development of the e-book market, as well as other digital content markets. 

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With the proceedings not yet cancelled despite Internet Archive’s decision to cut the NEL program short, there are concerns that its other services, such as its Internet Wayback machine, which is an archive of the internet dating back to the 1990s, may also be affected.  

“There is clearly a market here. Internet Archive is making available works that people needed and wanted, but they weren’t able to get them physically,” Alexander said.

“It feels like there is an opportunity, perhaps, for digital publishers to try and reach that market and maybe make their products more easily available, but not necessarily for free — on a basis that people can afford to access them in the same way that, say, Spotify has made mass libraries available for a reasonable price.”

But in explaining why digital publishers haven’t been as quick to adopt subscription-based models like those seen in the software and music streaming industry, Weatherall said e-books are “inherently different” products. 

“Copyright markets are very distinct. Music operates differently from books, it operates differently from software, operates differently from film. The economics behind them, the markets behind them, the market structures around them, differ quite a lot,” she said.

Instead of taking a subscription-based route, she explained that digital publishers have used other methods such as embargoes on books that only allow them to be available for e-book lending after it has been released for two months, among other restrictions, that are aimed at preventing people from accessing content without permission.

The NEL service will end on Tuesday.

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