More Calls Made for Big Publishing to Drop Lawsuit Against Internet Archive

The Internet Archive is renewing its call for big publishing to drop their lawsuit against their site. This follows researchers calling for the same.

The Internet Archive early last month made headlines when big publishing decided to sue the library for copyright infringement. Specifically, the Internet Archive offers a book lending program which permits a limited number of people from borrowing old books. When COVID-19 hit, physical libraries were forced to shut down. In order to fill the gap, the Internet Archive pushed a few more books through the queue and loosened some of the restrictions for their book lending service.

Unfortunately, this public service that some would easily argue is a necessary public service caught the attention of the major corporations in the publishing world. Many organizations that represent these large publishing corporations blasted the initiative, taking offence that someone would offer something more on humanitarian grounds. They even went so far as to call the temporary initiative as “vile”. In response, big publishing turned around and sued the Internet Archive for copyright infringement.

Some people, in the process, falsely claim that the Internet Archive was simply posting eBooks online for anyone to download without payments. The truth, of course, is that the system in place offers a lending system which is very different from offering free unrestricted downloads.

One question is how others are reacting to the lawsuit. Earlier this month, Techdirt pointed to researchers who urged big publishing to drop the lawsuit. From ARL:

For nearly 25 years, the Internet Archive (IA) has been a force for good by capturing the world’s knowledge and providing barrier-free access for everyone, contributing services to higher education and the public, including the Wayback Machine that archives the World Wide Web, as well as a host of other services preserving software, audio files, special collections, and more. Over the past four weeks, IA’s Open Library has circulated more than 400,000 digital books without any user cost—including out-of-copyright works, university press titles, and recent works of academic interest—using controlled digital lending (CDL). CDL is a practice whereby libraries lend temporary digital copies of print books they own in a one-to-one ratio of “loaned to owned,” and where the print copy is removed from circulation while the digital copy is in use. CDL is a practice rooted in the fair use right of the US Copyright Act and recent judicial interpretations of that right. During the COVID-19 pandemic, many academic and research libraries have relied on CDL (including IA’s Open Library) to ensure academic and research continuity at a time when many physical collections have been inaccessible.

As ARL and our partner library associations acknowledge, many publishers (including some involved in the lawsuit) are contributing to academic continuity by opening more content during this crisis. As universities and libraries work to ensure scholars and students have the information they need, ARL looks forward to working with publishers to ensure open and equitable access to information. Continuing the litigation against IA for the purpose of recovering statutory damages and shuttering the Open Library would interfere with this shared mutual objective.

Unfortunately, the litigation did cause the Internet Archive to shutter the emergency library program earlier than expected. So, it is no longer being offered and the site is returning to the standard book loaning system that was in place before.

More recently, the Internet Archive renewed the call for big publishing to drop the lawsuit. From Publishers Weekly:

“Librarians, publishers, authors, all of us should be working together during this pandemic to help teachers, parents, and especially students,” Kahle implored. “I call on the executives of Hachette, HarperCollins, Wiley, and Penguin Random House to come together with us to help solve the challenging problems of access to knowledge during this pandemic, and to please drop this needless lawsuit.”

Kahle’s remarks came as part of a panel, which featured a range of speakers explaining and defending the practice of Controlled Digital Lending (CDL), the legal theory under which the Internet Archive has scanned and is making available for borrowing a library of some 1.4 million mostly 20th century books.

“Please remember what libraries do: we buy, preserve, and lend books,” Kahle said. “Controlled Digital Lending is a respectful, balanced way to bring our print collections to digital learners,” he added, pointing out that once a physical book is digitized, it is only available one reader at a time. In addition, the scan and the print book are not allowed to circulate at the same time. “Controlled Digital Lending is a longstanding and widespread library practice,” Kahle suggested, adding that the Internet Archive’s Open Library program has been around for nine years.

Apparently, the sensible call was not enough to get Big Publishing to come to their senses:

Asked this week about Kahle’s call for the publishers to drop the litigation and work with the Internet Archive, a spokesperson for Association of American Publishers, which is coordinating the publishers’ lawsuit, dismissed the idea. “The IA uses its considerable resources to conduct and promote willful copyright infringement on a massive scale”, AAP spokesperson John McKay said. “IA’s infringements, which are extensive and well-documented, are now appropriately before the court.”

So, the Big Publishing is going to continue the fight against an initiative that has been described as a source of good in the world. So, it looks like, for now, the lawsuit some might consider evil will go ahead anyway.

The fear, of course, is what precedent this could set. It’s certainly possible that a library would suddenly be legally barred from lending out books online. Something like that could very easily cap a libraries ability to adjust to the digital age at the knees. So, with that, there would be fewer legal options available for people to read. So, where do you think people would turn to? Piracy. We could very well be seeing the seeds being sown for an encouragement of online piracy by big publishing.

Adding the icing on the cake, people might see big publishing as greedy thanks to the lawsuit much like how many people viewed the major record labels as greedy for mass litigation of alleged file-sharers back in the late 90’s to 2000’s. So, the question is, are we seeing the Napster lawsuit all over again in terms of the potential results? Chances are, big publishing is looking at the immediate moment and not the possible wider implications of such a lawsuit. That could very easily be to their detriment whether they realize it or not.

Drew Wilson on Twitter: @icecube85 and Facebook.

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