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Wednesday, August 17, 2022

Why is the world’s largest online library in court over digital book lending?

Earlier this month, the Internet Archive asked a US court to end lawsuits filed against it by four big book publishers.


  • Joan Gray

    Lecturer in Digital Cultures at the University of Sydney, University of Sydney

  • Cheryl Fuung

    Senior Lecturer in Law, Curtin University

The Internet Archive is a non-profit organization established in 1996 that lends digital copies of books, music, movies and other digitized content to the public. It aims to support people with print disabilities, preserve digital content for future generations, and democratize access to knowledge.

The publishers say the Internet Archive’s digital lending practices amount to intentional copyright infringement. The authors have also complained that the site hosts pirated content.

The Internet Archive says it is behaving like a normal library, as it only lends out digital copies of physical books. Its supporters in the Electronic Frontiers Foundation say that publishers only want to “control how libraries can lend their books”.

National Emergency Library

Publishers were particularly concerned about the “National Emergency Library” set up by the Internet Archive in March 2020. This temporary project aims to provide teachers with access to digital learning materials in the event of widespread library closures due to the COVID-19 pandemic.

In June 2020, publishers Hatchet, Penguin Random House, HarperCollins and John Wiley & Sons filed copyright infringement actions. It appears that publishers want to shut down not only the National Emergency Library, but all of the Internet Archive’s book-lending practices.

The publishers claim that the Internet Archive intentionally engages in collective copyright infringement by lending digital books without the permission and payment of the publishers.

The Internet Archive argues that, because it allows only one person to borrow a digital book at a time, it is simply mimicking regular library lending. However, this restriction was temporarily eased for the National Emergency Library.

Ordinary library lending does not require payment to publishers. Once a library has purchased a book, the library is free to lend it to its members.

Publishers are arguing that digital books are not on par with physical books and should be treated differently under the law.

Copyright already seen?

Didn’t Google win the debate about digital books years ago? Yes and no.

Google began digitizing library books in 2002. In 2005, book publishers and authors brought a high-profile lawsuit against Google for copyright infringement, which took a decade to resolve.

In the case against Google, US courts ruled that making complete copies of books and displaying snippets of those books to the public in the Google Books database is a “fair use”.

When deciding for Google, the courts paid particular attention to the historical purpose of copyright, which is to serve the public interest in access to knowledge.

market question

But the Google Books decision doesn’t mean that book publishers will again lose out against Internet Collections.

In the United States, when deciding whether a use is fair, courts need to consider the extent to which the copyright owner’s markets have been harmed.

Because book publishers often lend e-books commercially (including libraries), Internet archiving can be seen as harming that aspect of the publishers’ market.

It can be said that, by providing complete online access to books, Internet Archive is doing for free what publishers do for paid.

This differs from the Google Books decision, which considered potentially expanding the books market by providing access to snippets of books in Google’s database.

What counts as fair use?

However, the flexibility of fair use is something that the Internet Archive has.

There is room for a court to assess the public benefit of the Internet Archive’s lending practices, which, as the National Emergency Library exemplifies, are undeniably strong.

Assessing whether public interest arguments are strong enough to offset the weight of the market’s losses can be critical to deciding who will win in this case.

The Internet Archive may also have difficulty establishing that its practices are merely an extension of the traditional role of libraries, and go beyond the confines of the publisher’s legitimate markets.

In a 2013 case involving a “second-hand” market for digital copies of music, US courts ruled that emulating an analog model of diffusion was not sufficient to avoid copyright infringement.

Access matters in the digital age

Behind this recent controversy is decades-old tensions between the media industries that arose before and after the advent of the Internet.

Before the Internet, media and entertainment businesses made money by selling individual copies of content (think books, CDs, DVDs).

But in the age of the Internet the importance of individual copies has diminished. Online, we seek access to the Content rather than owning copies of the Content.

In the music and video industries, subscription or ad-supported streaming services such as Spotify and Netflix largely predominate.

However, the lawsuit against the Internet Archive shows that we have not yet found the right legal and economic settings for an access-based book-publishing model to flourish, in 2022.

find a way forward

Organizations such as the Internet Archive are trying to work in the gray area between the old and the new, for example by limiting access to match the number of print books in storage.

Rather than aiming to eliminate these gray areas, publishers should view these activities as evidence of unmet demand and a failure to be agile in times of crisis.

Publishers should adapt their dissemination model to the needs of the society.

Instead of establishing restrictive terms and conditions for access, they should work with libraries to create a sustainable model for dissemination that ensures books are available to those who need access to our shared knowledge and culture. is required.

The authors do not work to consult, own shares in, receive funding from any company or organization that would benefit from this article, and have not disclosed any relevant affiliations beyond their academic appointment.

/Courtesy of The Conversation. This material from the parent organization/author(s) as may be of a periodic nature, has been edited for clarity, style and length. The views and opinions expressed are those of the author(s).

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