On Friday, a federal judge in New York ruled that the Internet Archive violated U.S. copyright law when it digitized countless physical books from four major book publishers and offered them online. The highly anticipated verdict concerning the nonprofit’s behemoth online lending operation—3.6 million books protected by copyrights, including 33,000 of the publishers’ titles—was swift, landing days after the March 20 hearing.
“At bottom, [the Internet Archive’s] fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book,” Judge John G. Koeltl of the U.S. District Court in Manhattan wrote. “But no case or legal principle supports that notion. Every authority points the other direction.”
In 2020, Hachette, HarperCollins, Penguin Random House and Wiley sued the San Francisco–based Internet Archive over its National Emergency Library, which was created when physical libraries closed during COVID-19 lockdowns. During that period, the Internet Archive allowed visitors to its website unlimited access to digitized books it had scanned from print copies.
The publishers’ lawsuit had also targeted the Internet Archive’s Open Library for “willful mass copyright infringement” and a concept known as controlled digital lending, which it dubbed “an invented paradigm that is well outside of copyright law.” In controlled digital lending, a library with a print copy of a book digitizes it, holds back a print copy and lends the digitized version.
“Libraries are more than the customer service departments for corporate database products,” Brewster Kahle, the founder and director of the Internet Archive, wrote on the organization’s blog after the ruling. “For democracy to thrive at global scale, libraries must be able to sustain their historic role in society—owning, preserving and lending books.”
Libraries that engage in controlled digital lending do so in many ways. Some applications bump up against the pillars of fair use as defined by U.S. copyright law, and some don’t, according to librarians with whom Inside Higher Ed spoke. But legions of Internet Archive supporters viewed the case as a fight for the rights of all libraries to own and preserve books. Meanwhile, organizations such as the Authors Guild stood with the publishers and dubbed the Internet Archive’s actions “piracy.” The case issued a verdict on the limits of digital libraries, though the Internet Archive plans to appeal the decision.
“The publishers have demanded that we digitally burn three million books,” Kahle told Inside Higher Ed before the ruling. “It would be a book burning on an unprecedented scale.”
Controlled Digital Lending at the Internet Archive
The Internet Archive began digitizing print books for online lending in 2005 and scans 4,300 books per day in 18 locations around the world, according to its website. Every day, it lends approximately 70,000 books. The organization viewed its controlled digital lending practices as comparable to those in which many brick-and-mortar libraries engage, Kahle told Inside Higher Ed before the verdict.
The practice of controlled digital lending differs from services like Amazon’s Kindle library program, in which libraries secure licenses for publisher-provided ebooks. Under controlled digital lending, the library digitizes the book.
To determine whether a particular application of controlled digital lending is fair use, a judge must assess four factors: the purpose and character of the use, including whether the use is commercial or educational; the nature of the copyrighted work; the amount and substantiality of the portion taken; and the effect of the use upon the potential market.
In the Hachette vs. the Internet Archive case, Koeltl ruled that all four factors strongly favored the publishers.
Controlled Digital Lending in Higher Ed
When librarians in higher education want to know whether an application of controlled digital lending is legal, many consult the Association of Research Librarians’ position statement, which attempts to offer a “good faith interpretation” of U.S. copyright law. Even so, the association recommends that librarians wishing to implement controlled digital lending consult a “competent” lawyer.
What constitutes fair use may depend on the book, according to Alan Inouye, interim associate executive director of the American Library Association. For example, scanning and lending a digitized version of a decades-old book that has no publisher-issued ebook differs from doing the same with a recent New York Times best seller whose publisher offers an ebook option.
“When you’re in a lawsuit, there’re only two sides. It is inherently adversarial,” Inouye said. “For those of us who are not involved in a lawsuit, the issue is … incredibly nuanced. Usually, some things are more OK, and some things are less OK … There are no fair-use police or an authoritative guidebook saying exactly how it works. It is a judgment.”
Some higher ed librarians on the ground agree.
“There’s always that fuzziness of whether or not this constitutes fair use,” said Yasmine Abou-El-Kheir, director of the Lapp Learning Commons at the Chicago Theological Seminary, where students attend predominantly online. “There’s a question of equity … Online students pay tuition like face-to-face students, and yet their access to materials might be hindered due to the fact that the material is just not available digitally.”
Many theological books needed by learners or professors at the seminary, for example, are out of print, Abou-El-Kheir added. When a student or scholar makes a direct request for a book in the collection for which no ebook exists, a seminary librarian may engage in controlled digital lending by digitizing part or all of the book, removing the print book from circulation and making the digitized version available for the same duration as is allowed for a print book. Still, Abou-El-Kheir wonders whether some instances would be considered “a bit more than fair use.”
Also, having the technology to honor the spirit of controlled digital lending is a “thorny issue,” Abou-El-Kheir said. The seminary’s library has found some workarounds to ensure that a link to a digitized book cannot be used by multiple students. For example, students are required to log in to access books that library staff digitized from physical copies. Nonetheless, the library seeks to migrate to another library catalog with built-in controlled digital lending functionalities.
But some institutions, including Iowa State University, steer clear of offering books through controlled digital lending.
“From a library’s perspective, there’s legal risk,” Dawn Mick, head of the university library, said of the range of interpretations of controlled digital lending. “But also, where do you put this stuff?” referring to the books that must be held back when a digitized copy circulates.
Some institutions, such as the University of Hawai‘i, publish guidelines that seek to offer clarity, even if those guidelines raise other questions. For example, at Hawai‘i, a professor’s personal copy of a book that is not available at a reasonable price, is hard to find or is out of print is considered within bounds if the personal copy of the book is sequestered in the library when the digitized copy is made available. But the university does not elaborate on what constitutes a “reasonable” price. Course textbooks for which the publisher offers an ebook, regardless of price, are not candidates for controlled digital lending at the institution.
In between the colleges that engage in controlled digital lending and those that do not lies a messy middle. Numerous college librarians declined to speak on the record about controlled digital lending, out of concern that the topic is a lightning rod.
Passionate Supporters on Both Sides
In September, hundreds of authors signed an open letter from Fight for the Future in support of the Internet Archive. The letter characterized the lawsuit as “an attack against libraries” that undermined their rights to own and preserve books, intimidated libraries with lawsuits, and smeared librarians.
“Anyone who tells you libraries and authors are on the opposite side of any issue has grossly misunderstood the nature of libraries, or authors or both,” Cory Doctorow, co-author of Chokepoint Capitalism, which explores the harms of big content creators, and signatory of the Fight for the Future letter, wrote in a statement accompanying the letter. “We are class allies and artistic comrades-in-arms.”
“I flat-owe my career as a trans author to the unimpeded circulation of digital books,” Torrey Peters, PEN/Hemingway recipient, the first trans woman nominee for the Woman’s Book Award and a signatory of the Fight for the Future letter, wrote in a statement accompanying the letter. “The first trans books that inspired me were digital, my own first books were published digitally … Everybody benefits when digital books are accessible.”
Many in academe also stood with the Internet Archive, including a group of current and former college librarians who published an op-ed in Inside Higher Ed last week. These librarians called the online library “the most important cultural institution of the modern age.”
But many organizations and authors sided with the publishers.
“It is piracy, pure and simple, however artfully disguised as ‘fair use’ and public service,” an Authors Guild statement in support of the publishers said. “Indeed, as litigation uncovered, the Internet Archive’s scanning operation—far from the beneficent public service its founder Brewster Kahle and its supporters pitch it as—is a lucrative commercial enterprise that between 2011 and 2020 generated $30 million in revenue from libraries.” The statement added that full-time authors, whose medium income is $20,300, were paying the cost.
Indeed, many authors agreed.
“When I went on the Internet Archive’s website and saw that scans of my books were being distributed to anybody who wanted them for free, without my permission or any payment, I was appalled,” Sandra Cisneros, author of The House on Mango Street, American Book Award recipient and MacArthur Fellow (the so-called genius grant), wrote in a statement on the Association of American Publishers’ website. “I found the experience so viscerally upsetting that I could not stay on the website for long. It was like I had gone to a pawn shop and seen my stolen possessions on sale.”
“The libraries that raised me paid for their books, they never stole them,” Cisneros continued. “Any libraries that want to provide e-book versions of my books to the public for free can do so because I have authorized Penguin Random House to license my work to any library that is willing to pay for the authorized digital formats. I consider Internet Archive’s distribution of my books to be a terrible violation of the control I have worked so hard to establish over my work.”
Authors who are solely focused on being read, rather than earning a living by way of writing, can seek Creative Commons licenses, according to many authors who supported the publishers contacted for this story.
“We need a professional class of writers in this country,” Mary Rasenberger, CEO of the Authors Guild, said. “We need people who can write good books and not just hobbyists who write on their weekends.”
Yet some academics are unconvinced that writing should be a full-time job.
“The internet has opened up options for authors to find other revenue streams, which can support the work they do without having to rely so much on the publishers as the only place they can get money,” Sean O’Brien, visiting fellow at the Information Society Project at Yale Law School, said before the ruling. “It’s not like I don’t want to see them writing or making a living. But I also think they’re going to have to change with the times just like everybody else.”
But not all agree.
“We totally appreciate the fact that some authors don’t care about making money from their books,” Rasenberger told Inside Higher Ed. “But it’s got to be the author’s choice.”