By Arielle Feuerstein
At the end of March, a group of book publishers took on nonprofit Internet Archive in federal court, claiming that the organization was engaging in copyright infringement for loaning out digital books without seeking the proper permissions or providing compensation to the necessary parties. Now that the publishers have won the case, it could set an interesting precedent for the future of digital lending libraries. It is worthwhile to investigate the details of this case and how they may affect digitization efforts going forward.
Internet Archive is a non-profit digital library which provides universal access to books, videos, images, and more, according to its website. Anyone who has a free account can upload images to contribute to Internet Archive’s collection. During the height of the pandemic, Internet Archive began partnering with libraries and providing them with access to their collections with modified limits on lending to allow libraries to distribute the materials to their patrons.
In June of 2020, several book publishers, including Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House, sued, claiming that Internet Archive infringed upon their copyrights by lending digital copies of particular books without their permission. Internet Archive claimed they should not be liable for copyright infringement because they make fair use of the materials. When these publishers partner with authors, they receive exclusive rights to publish books in both print and digital formats — including ebooks. Usually, both publishers and authors are also paid for the sales of all these different formats.
What does this court case mean exactly for the future of digital libraries? According to District Judge John G. Koeltl’s court opinion, “This dispute concerns the way libraries lend ebooks.” Traditionally, when libraries add print books to their collections, they purchase them through publishers or wholesalers. Once purchased, a printed book can be lent without restriction. Ebooks, however, are usually licensed from aggregators rather than purchased outright. These aggregators regulate the libraries’ usage of ebooks by using “digital rights management” (“DRM”) software, along with other security measures, to stop the library from engaging in unauthorized copying or distribution of the ebooks.
Internet Archive uses a third method for acquiring books: scanning print copies that are usually already owned by libraries and then distributing the digital copies while the print copies remain on library shelves. These ebooks are not accessible without limits on their website: copyright-protected books are only available for download in limited numbers at a time. Because Internet Archive engaged in “Controlled Digital Lending,” they argued they were serving the same role as a library. However, Internet Archive also dodged the need to purchase licenses from a publisher or regulate the use of the ebooks.
The judge ruled that even if an entity legally acquires a print version of a book, that does not entitle them to produce an unauthorized digital copy and distribute it in place of the print book.
Moving forward, libraries will need to ensure they purchase the licenses for ebooks from publishers, and that they continually renew their licenses as time passes. In addition, digital collections will need to shy away from providing unlimited, unregulated access to works not in the public domain.
This could also set a precedent for the digitization of historical manuscripts. Libraries, schools, and other institutions seeking to digitize and publish their collections online may need to seek out additional rights.
It also may uproot existing digital manuscripts and archive collections. Dartmouth, for instance, digitized their copy of the Brut manuscript, and claimed the Creative Commons BY-NC license to the material based on their physical ownership of the manuscript. This court case could see a ripple effect, in which the copyright legitimacy of digitized versions of manuscripts may be called into question.
The Internet Archive still plans to appeal the ruling, so the future of open-access digital libraries is not set in stone. Perhaps future cases will further alter our understanding of what it means to own digital literature.
