Internet Archive Issues Legal Response to Big Publishing’s Lawsuit

As the lawsuit against the Internet Archive moves ahead, the Internet Archive has issued a legal response to defend digital libraries.

It’s one of the most, if not, the most high profile and recent attacks on libraries. After rolling out a temporary humanitarian effort by creating the National Emergency Library program, Big Publishing attacked the initiative as “vile“. The initiative is, of course, in response to COVID-19 and how the global pandemic crippled people’s ability to access knowledge.

Shortly after, Big Publishing then turned their disgust towards the humanitarian effort and sued the Internet Archive for copyright infringement. They contend that the humanitarian initiative could get in the way of their huge profits. The lawsuit has, unfortunately, caused the humanitarian effort to get cut short. So, the book lending program was suspended sooner then expected.

Many have shown support for the virtual library and called for the end of the litigation effort. Big Publishing, unfortunately, refused to budge on their position and are dedicated to the cause of burning the library to the ground. In response, some worry about just how much history could be lost. One writer worried that large chunks of gaming history could be lost should the library be destroyed by Big Publishing.

Now, it seems that the Internet Archive has filed a legal response to the unnecessary lawsuit. From Publishers Weekly:

“The Internet Archive does what libraries have always done: buy, collect, preserve, and share our common culture,” reads the IA’s preliminary statement to its answer, contending that its collection of roughly 1.3 million scans of mostly 20th century books, many of which are out of print, is a good faith and legal effort to “mirror traditional library lending online” via a process called Controlled Digital Lending (CDL).

“Contrary to the publishers’ accusations, the Internet Archive, and the hundreds of libraries and archives that support it, are not pirates or thieves,” the filing states. “They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world. Copyright law does not stand in the way of libraries’ right to lend, and patrons’ right to borrow, the books that libraries own.”

“The Internet Archive has made careful efforts to ensure its uses are lawful,” IA lawyers state, contending that its CDL program is “sheltered by the fair use doctrine,” and “buttressed” by traditional library practices and protections. “Specifically, the project serves the public interest in preservation, access and research—all classic fair use purposes. Every book in the collection has already been published and most are out of print. Patrons can borrow and read entire volumes, to be sure, but that is what it means to check a book out from a library. As for its effect on the market for the works in question, the books have already been bought and paid for by the libraries that own them. The public derives tremendous benefit from the program, and rights holders will gain nothing if the public is deprived of this resource.”

It’s a perfectly reasonable set of arguments. This once again points out that the library is more about loaning books out rather than wholesale downloading – a false narrative pushed by the anti-innovation voices out there. In addition to being able to offer access to knowledge in the digital world, the library also fulfills its roll in preserving culture as well. As physical mediums become more unusable, digital forms of content can play an important roll in content preservation. Sure, it may not be perfect, but it is an effective method at enhancing the life span of aging content.

Perhaps another important point to make is that the Internet Archive offers that sense of legitimacy. For quite some time, one of the biggest sources online for preserved old content are specialized unauthorized sources. If creators are worried that they get little out of digital libraries, the alternative is that they will get nothing because some consumers are only familiar with unauthorized sources to sample new content. It has been widely accepted that people who obtain content without charge frequently wind up being the biggest customers for legal content. If the Internet Archive goes down in flames, consumers are going to find other free sources. Why not keep them in the legal ecosystem?

So, it seems that the lawsuit against the library is going to move ahead no matter how less than sensible it is. We’ll try and keep an eye on things as this litigation moves ahead. Here’s hoping that there is a favourable outcome in all of this for the Internet Archive.

Drew Wilson on Twitter: @icecube85 and Facebook.

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