The Internet Archive on trial against US publishing giants

The Internet Archive, the free digital library founded 27 years ago by Brewster Kahale, it was called to defend itself in court. To mention it, almost all the big names in US publishing, from Hachette to HarperCollins via John Wiley & Sons and Penguin Random House, who formally target an initiative conceived by the platform in 2020, in the toughest months of the pandemic. But in hindsight they essentially aim to dismantle the non-profit model of a free digital library accessible to anyone.

How the Internet Archive’s Open Library works

For many years, the Internet Archive has not only tracked billions of web pages through the Wayback Machine or films, audio content, software and images but also and above all of over 37 million volumes scanned autonomously by the libraries participating in the project and in other ways to feed the OpenLibrary.

These volumes (and in particular one collection of 4.4 million proposed in the form of ebooks) are digitally lent on a one-to-one basis, also known as own-to-loan. If a library owns the physical copy of a certain title, it will keep it on the shelves if its digital twin is loaned out. A system also known as controlled digital landing. In short, the mechanism of a traditional library enhanced by the possibility of a volume transformed into an ebook.

The 2020 National Emergency Library Project Misstep

The Internet Archive does it in autonomy and col network of libraries adhering to the platform, rejecting the purchase of temporary licenses for ebooks proposed (often at a high price) by publishers but scanning physical copies transformed into books to be consulted digitally. It is evidently a work that is always at the limit of US copyright protection: for this reason the publishers, taking advantage of the initiative launched during the pandemic (called National Emergency Library), they want to block the historic platform. That initiative suspended the own lo loan principle for 3 months, allowing an unlimited number of people to access each available ebook with a two-week loan period. As if a physical library had started making photocopies of booksgranting them to an unspecified number of users: a perhaps sensible gesture in times of restriction but which opened a crack in a model that had held up for years.

The publishers seized the opportunity to call a judge to decide whether (as he defended himself Joseph Gratz, attorney at The Internet Archive) whether it is a question of a correct use of those contents or if that system instead constitutes a systematic violation of copyright and therefore of “intentional digital piracy”. The platform’s lawyer, for his part, insisted that the publishing giants are unable to quantify if and how much the work of the Internet Archive causes them economic damage: “There is no evidence that publishers have lost a dime,” Gratz said during a hearing in a New York district court.

According to the report by Ars Technica, during the hearing of 20 March the federal judge, John Koeltl, asked very clear questions both to Gratz and to the plaintiffs’ lawyer, the highly experienced Elizabeth McNamara: resolving the matter is a less simple task than both sides have so far indicated. Koeltl stressed that since publishers have the right to control the reproduction of their books, the “heart of the case” is whether The Internet Archive’s scan of the book violates copyright precisely because plays an already licensed physical volume and lends it without paying additional licensing fees to publishers.

The burden of defense rests with The Internet Archive

There is evidently a remnant of Web 1.0 in this dispute. There is the wiki logic, for sharing resources online straddling the gaps in the laws and reproducing online the mechanisms that are legal offline, to be put under fire: “The library has the right to make a copy of the book it owns and then lend that ebook, which it has made without a license and without permission , to library users?” Koeltl asked Gratz. Instead, McNamara pointed out that many libraries pay licenses to publishers to be able to lend ebooks legally, arguing that this is precisely the market that the Internet Archive ends up targeting. threaten with his practices (also read in the subpoena). In short, it is up to the platform to try to demonstrate that this is not the case. If the judge holds it responsible, it could have to close the Open Library and delete from the servers the copies accumulated over the years and lent to millions of people.

The Internet Archive has, and will continue to do so, claiming that the digital loan falls under the category of so-called fair use, i.e. the ability to use copyrighted material for information, criticism or teaching purposes, without asking for written authorization from the holder of the rights, a right dating back to the Copyright Act of 1976 but , more generally, to more deeply rooted Common Law practices. This would be transformative fair use, because copies of physical books are made in order to improve lending efficiency without violating the rights of publishers or authors. Granting the book to only one user at a time would therefore assimilate the mechanism to that of traditional libraries, which have always existed and do not damage publishers’ profits.

Not enough: the defense thesis of The Internet Archive (and perhaps the strongest card held by the platform) is that while publishers attack those 12 weeks of special project decided on the occasion of the pandemic and the threat to their business posed by the immense archive, their profits have grown. To be precise, in the United States, by 12%, with a sales peak of 3 billion dollars in 2021. There are obviously two cases: either the US publishing industry, which considers the controlled digital lending paradigm completely unrealistic , is really impressed by The Internet Archive or the cause is purely of principle. A principle which, among other things, harms historical memory: the work of The Internet Archive is also and above all cultural. There are digital copies of out-of-print volumes, never reprinted and disappeared from physical circulation which, if the cause were to turn against the site, would disappear forever.

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The Web archive is also at risk

How will it end? It will depend on the interpretation that the judge will provide. As The Verge recallsOn the one hand, despite the publishers’ reference to “illegally digitized books”, courts have historically protected the right to digitize books without permission. For example, there is a 2014 ruling that provided fair use protection to a massive digital preservation project by Google Books and HathiTrust. On the other hand, services like ReDigi, which allowed people to store their own music files in a digital locker and to sell them, they were closed by the judges. In this case according to the logic of publishers, who do not consider The Internet Archive a digital library but a pirate aggregator who, moreover, makes money with affiliate links to e-commerce platforms and by offering its editorial scanning service.

If the sentence will necessarily be specific to the platform, given the complexity of the case and more generally the nuances from which the world of copyright is made up, the implications could as always be broader. Staying with the publishing industry, undermining any attempts to reuse physical books in ways that publishers don’t approve of. Fight for the Future, an organization for digital rights, has for example supported The Internet Archive with a campaign called Battle for Libraries, explaining precisely that the lawsuit threatens the ability of libraries to produce and hold digital copies of books. Secondly, considering the possibility of a sentence of billions of dollars in damages, also blocking all the other projects of the organization, starting with the Wayback Machine which has become an irreplaceable archival resource for the memory of the Network.