While nobody owns the internet outright, there are bodies that facilitate its use and resources. One of these bodies is the Internet Archive (IA), a non-profit organization dedicated to providing free online access to books.

Recently, the Internet Archive found itself in the middle of a legal battle with major book publishers, which resulted in the removal of approximately 500k titles from IA's collection, a move described by the organization as a "devastating loss" for readers who rely on the platform to access otherwise hard-to-find books.

From a legal standpoint, this is a setback to both the Internet Archive and the broader movement advocating for digital access to information. The removal of these books shows the tension between the preservation of intellectual property rights and the public's right to access information.

The Legal Battle and Its Repercussions

A lawsuit filed by the Association of American Publishers (AAP) resulted in a federal court ruling that mandated the removal of these titles from the Internet Archive's collection. 

According to the AAP, IA transmitted literary works worldwide without acquiring the necessary rights from authors and publishers, constituting copyright infringement. This legal enforcement forced IA to comply, resulting in the removal.

Chris Freeland, IA's Director of Library Services, expressed the organization's dismay and outlined their intent to restore access to these books by appealing the court's decision. The case is currently pending in the U.S. Court of Appeals for the Second Circuit. 

Freeland emphasized IA's practice of controlled digital lending—where physical books are purchased, acquired, and made available for one person at a time to check out and read online—should be considered fair use under copyright law.

Fair Use Argument

At the center of IA's argument is the fact that their controlled digital lending practice serves important public interests without harming the e-book market. This was further highlighted by Freeland when he pointed out that IA employs industry-standard technology to prevent illegal downloading and sharing of books, similar to the safeguards used by corporate publishers.

Within this controlled digital lending system, there is a focus on ensuring readers, particularly those who are younger, low-income, or living in underserved communities, have access to books that would have otherwise been inaccessible to them.

The IA legal team is set to argue that the publishers have not provided substantial evidence of harm to the e-book market caused by the open library's lending practices. They assert that copyright law is better served by allowing IA's lending rather than preventing it, supporting the principle that knowledge should be equally accessible to everyone.

Appeals Court Hears Internet Archive Copyright Case

On June 28, a three-judge panel of the U.S. Court of Appeals for the Second Circuit heard oral arguments in the Internet Archive’s appeal of a March 2023 court decision finding its program to scan and lend print library books to be copyright infringement. While the court appeared skeptical of the Internet Archive’s arguments, the panel was deeply engaged and well-prepared, posing numerous questions to both sides.

The hearing follows federal judge John G. Koeltl’s ruling last year that found the Internet Archive infringed the copyrights of four plaintiff publishers by scanning and lending their books under a legally contested practice known as controlled digital lending (CDL). Koeltl stated, “At bottom, IA’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. But no case or legal principle supports that notion. Every authority points the other direction.”

At the appeal hearing, IA lawyer Joe Gratz argued that the IA and libraries were simply using technology to do what they traditionally do—lend the books they’ve legally acquired—but more efficiently and conveniently, which courts have favored as transformative. However, the court questioned this premise, noting the distinct market for digital books and the potential disruption caused by unlicensed digital lending.

Arguing for the publishers, Elizabeth McNamara emphasized that the Internet Archive’s actions constituted a radical change in the law that could destabilize the digital economy. She asserted that the IA was making unauthorized digital copies of print books and distributing them worldwide, which infringed on the publishers’ rights.

The court did not decide the case from the bench and provided no timeline for a ruling. Post-hearing, IA co-counsel Corynne McSherry acknowledged the court’s deep engagement, indicating the significance of the decision.

Impact on Readers and the Community

The removal of the 500k books has left a significant mark on IA's users. Many titles now display "Borrow Unavailable," although patrons with print disabilities can still access them. This has led to a surge of messages from readers worldwide searching for the missing titles.

More than 20k supporters have signed an open letter dated June 14, urging publishers to rethink the takedowns and restore the lost books. The letter highlights the negative impact on academics, students, and educators, especially in resource-limited communities.

These letters also highlight how low-income families, people with disabilities, rural communities, and LGBTQ+ individuals who may not have access to local libraries or feel comfortable accessing necessary information in public are being hit the hardest. 

In defense of the takedowns, the AAP stated that the removal of literary works from IA's platform was ordered by a federal court with mutual agreement following the court's finding of copyright infringement. 

The Continued Fight for Information Access

Freeland reiterated that this lawsuit has far-reaching implications beyond the Internet Archive itself. He called on publishers to "let readers read," arguing that the fight is not just about IA but about preserving the fundamental right to access information, which is a cornerstone of any democratic society. 

He stressed that libraries must be permitted to fulfill their mission of providing access to knowledge, regardless of whether it takes physical or digital form. IA's fair use defense hinges on the argument that its digital lending is non-commercial, transformative, and supportive of copyright purposes. 

The organization aims to convince the appeals court that their controlled digital lending serves a different purpose than e-books and should not be seen as a threat to the e-book market. The appeal is set to continue with further developments expected. The outcome of this case will impact the future of digital lending and the role of libraries in the digital age.