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Preliminary Court Setback for Libraries and Digital Lending
The Internet Archive has published a post about their ongoing fight in the lower courts over Controlled Digital Lending (CDL) [archive.org], specifically from the case Hachette v Internet Archive [eff.org]. This potentially affects all libraries with digital resources and the Internet Archive will appeal the court's decision.
Today’s lower court decision in Hachette v. Internet Archive [eff.org] is a blow to all libraries and the communities we serve. This decision impacts libraries across the US who rely on controlled digital lending to connect their patrons with books online. It hurts authors by saying that unfair licensing models are the only way their books can be read online. And it holds back access to information in the digital age, harming all readers, everywhere.
But it’s not over—we will keep fighting for the traditional right of libraries to own, lend, and preserve books. We will be appealing the judgment and encourage everyone to come together as a community to support libraries against this attack by corporate publishers.
The Electronic Frontier Foundaion (EFF) pointed out that libraries have already paid publishers billions of dollars for their print collections which are being digitized at great expense as means of preserving these slowly decaying artifacts. CDL helps make full use of the books that the public have already bought and paid for in their libraries. Gizmodo had a piece a few days ago, giving a heads up about this setback: Internet Archive Faces Uphill Battle in Lawsuit Over Its Free Digital Library [gizmodo.com].
Hachette and several other publishers are fighting the Internet Archive in court to stop the practice of CDL. Basically, CDL is a model where artificial restrictions are imposed to create artificial scarcity of digital resources in emulation of the old model based on physical artifacts. This attack on basic library service is just the latest in decades of such attacks. Glyn Moody provides some context about other, long-term general attempts to remove libraries [walledculture.org] from the picture.
The Internet Archive Has Lost its First Fight to Scan and Lend E-books Like a Library
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The Internet Archive has lost its first fight to scan and lend e-books like a library [theverge.com]:
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The Internet Archive has lost its first fight to scan and lend e-books like a library The Internet Archive has lost its first fight to scan and lend e-books like a library / A federal judge has ruled against the Internet Archive in a lawsuit brought by four book publishers. Share this story
A federal judge has ruled against the Internet Archive in Hachette v. Internet Archive,a lawsuit brought against it [theverge.com] by four book publishers, deciding that the website does not have the right to scan books and lend them out like a library.
Judge John G. Koeltl decided that the Internet Archive had done nothing more than create “derivative works,” and so would have needed authorization from the books’ copyright holders — the publishers — before lending them out through its National Emergency Library program.
The Internet Archive says it will appeal. “Today’s lower court decision in Hachette v. Internet Archive is a blow to all libraries and the communities we serve,” Chris Freeland, the director of Open Libraries at the Internet Archive, writes in a blog post [archive.org]. “This decision impacts libraries across the US who rely on controlled digital lending to connect their patrons with books online. It hurts authors by saying that unfair licensing models are the only way their books can be read online. And it holds back access to information in the digital age, harming all readers, everywhere.”
The two sides went to court on Monday [theverge.com], with HarperCollins, John Wiley & Sons, and Penguin Random House joining Hachette as plaintiffs.
In his ruling, Judge Koetl considered whether the Internet Archive was operating under the principle of Fair Use, which previously protected [eff.org] a digital book preservation project by Google Books and HathiTrust in 2014, among other users. Fair Use considers whether using a copyrighted work is good for the public, how much it’ll impact the copyright holder, how much of the work has been copied, and whether the use has “transformed” a copyrighted thing into something new, among other things.
The judge dismissed all of the IA’s Fair Use arguments
But Koetl wrote that any “alleged benefits” from the Internet Archive’s library “cannot outweigh the market harm to the publishers,” declares that “there is nothing transformative about [Internet Archive’s] copying and unauthorized lending,” and that copying these books doesn’t provide “criticism, commentary, or information about them.” He notes that the Google Books use was found “transformative” because it created a searchable database instead of simply publishing copies of books on the internet.
Koetl also dismissed arguments that the Internet Archive might theoretically have helped publishers sell more copies of their books, saying there was no direct evidence, and that it was “irrelevant” that the Internet Archive had purchased its own copies of the books before making copies for its online audience. According to data obtained during the trial, the Internet Archive currently hosts around 70,000 e-book “borrows” a day.
The lawsuit came from the Internet Archive’s decision to launch the “National Emergency Library” [archive.org] early in the covid pandemic, which let people read from 1.4 million digitized books with no waitlist. Typically, the Internet Archive’s Open Library program operates under a “controlled digital lending” (CDL) system where it can loan out digitized copies of a book on a one-to-one basis, but it removed those waitlists to offer easier access to those books when stay-at-home orders arrived during the pandemic. (CDL systems operate differently than services like OverDrive, which can lend you publisher-licensed ebooks.) Some weren’t happy [vox.com] about the Internet Archive’s choice, and the group of publishers sued the organization in June 2020 [courtlistener.com]. Later that month, the Archive shut down that program [theverge.com].
The Internet Archive says it will continue acting as a library in other ways, despite the decision. “This case does not challenge many of the services we provide with digitized books including interlibrary loan, citation linking, access for the print-disabled, text and data mining, purchasing ebooks, and ongoing donation and preservation of books,” writes Freeland.
“The publishing community is grateful to the Court for its unequivocal affirmation of the Copyright Act and respect for established precedent,” Maria A. Pallante, president and CEO of the Association of American Publishers, said in a statement [publishers.org]. “In rejecting arguments that would have pushed fair use to illogical markers, the Court has underscored the importance of authors, publishers, and creative markets in a global society. In celebrating the opinion, we also thank the thousands of public libraries across the country that serve their communities everyday through lawful eBook licenses. We hope the opinion will prove educational to the defendant and anyone else who finds public laws inconvenient to their own interests.”
Update March 25th, 9:43AM ET: Added statement from the Association of American Publishers.
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Internet Archive Violated Publisher Copyrights by Lending Ebooks, Court Rules
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Internet Archive violated publisher copyrights by lending ebooks, court rules [engadget.com]:
A federal judge has ruled against the Internet Archive in its high-profile case against a group of four US publishers led by Hachette Book Group. Per Reuters [reuters.com], Judge John G. Koeltl declared on Friday the nonprofit had infringed on the group’s copyrights by lending out digitally scanned copies of their books.
The lawsuit originated from the Internet Archive’s decision to launch the “National Emergency Library” during the early days of the pandemic. The program saw the organization offer more than 1.4 million free ebooks, including copyrighted works, in response to libraries worldwide closing their doors due to coronavirus lockdown measures.
Before March 2020, the Internet Archive’s Open Library program operated under what’s known as a “controlled digital lending” system, meaning there was often a waitlist to borrow a book from its collection. When the pandemic hit, the Internet Archive lifted those restrictions to make it easier for people to access reading material while stuck at home. The Copyright Alliance [torrentfreak.com] was quick to take issue with the effort. And in June 2020, Hachette, as well as HarperCollins, Penguin Random House and John Wiley & Sons, sued The Internet Archive [engadget.com], accusing the organization of enabling “willful mass copyright infringement.” That same month, the Internet Archive shuttered the National Emergency Program early [engadget.com].
Going into this week’s trial, the Internet Archive argued the initiative was protected by the principle of Fair Use, which allows the unlicensed use of copyrighted works under some circumstances. As The Verge notes [theverge.com], HathiTrust, an offshoot of the Google Books Search project, successfully used a similar argument in 2014 to fend off a legal challenge [eff.org] from The Authors Guild. However, Judge Koeltl rejected the Internet Archive’s stance, declaring “there is nothing transformative” about lending unauthorized copies of books. "Although [the Internet Archive] has the right to lend print books it lawfully acquired, it does not have the right to scan those books and lend the digital copies en masse," he wrote [thomsonreuters.com]. Maria Pallante, the president and CEO of the Association of American Publishers, said [publishers.org] the ruling “underscored the importance of authors, publishers, and creative markets in a global society."Subscribe to the Engadget Deals Newsletter
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On Saturday, the Internet Archive said it would appeal the decision. “Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society — owning, preserving, and lending book,” the nonprofit wrote in a blog post [archive.org]. “This ruling is a blow for libraries, readers, and authors and we plan to appeal it.”
;
the-right-to-libraries dept.
Judge rules online archive's book service violated copyright [apnews.com]:
NEW YORK (AP) — A federal judge has sided with four publishers who sued an online archive over its unauthorized scanning of millions of copyrighted works and offering them for free to the public. Judge John G. Koeltl of U.S. District Court in Manhattan ruled that the Internet Archive was producing “derivative” works that required permission of the copyright holder.
The Archive was not transforming the books in question into something new, but simply scanning them and lending them as ebooks from its web site.
“An ebook recast from a print book is a paradigmatic example of a derivative work,” Koeltl wrote.
The Archive, which announced it would appeal Friday’s decision, has said its actions were protected by fair use laws and has long had a broader mission of making information widely available, a common factor in legal cases involving online copyright.
“Libraries are more than the customer service departments for corporate database products,” Internet Archive founder Brewster Kahle wrote in a blog post Friday. “For democracy to thrive at global scale, libraries must be able to sustain their historic role in society — owning, preserving, and lending books. This ruling is a blow for libraries, readers, and authors and we plan to appeal it.”
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In June 2020, Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House sued in response to the Archive’s National Emergency Library, a broad expansion of its ebook lending service begun in the early weeks of the pandemic, when many physical libraries and bookstores had shut down. The publishers sought action against the emergency library and the archive’s older and more limited program, controlled digital lending (CDL). Works by Toni Morrison, J.D. Salinger and Terry Pratchett were among the copyrighted texts publishers cited as being made available.
While the Authors Guild was among those opposing the emergency library, some writers praised it. Historian Jill Lepore, in an essay published in March 2020 in The New Yorker, encouraged readers who couldn’t afford to buy books or otherwise were unable to find them during the pandemic to “please: sign up, log on, and borrow!” from the Internet Archive.
In a statement Friday, the head of the trade group the Association of American Publishers, praised the court decision as an “unequivocal affirmation of the Copyright Act and respect for established precedent.
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“In rejecting convoluted arguments from the defendant, the Court has underscored the importance of authors, publishers, and lawful markets in a global society and global economy. Copying and distributing what is not yours is not innovative — or even difficult — but it is wrong,” said Maria Pallante, the association’s president and CEO.
The Internet Archive, founded in 1996, is a nonprofit “founded to build an Internet library, with the purpose of offering permanent access for researchers, historians, and scholars to historical collections that exist in digital format.” Unlike traditional libraries, it does not acquire books directly through licensing deals with publishers, but through purchases and donations. The archive also includes millions of movies, TV shows, videos, audio recordings and other materials.
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