Publisher’s lawsuit seeks to remove Internet Archive’s digital lending library

The Internet Archive is an online digital library based in San Francisco, California, and founded in 1996 with the stated mission of providing “universal access to all knowledge”. The archives allow the public to consult vast collections of digitized music, books and films free of charge.

Internet Archive servers at headquarters in San Francisco.

As of May 2022, the Internet Archive has accumulated over 35 million books and texts, 7.9 million movies, videos and TV shows, 842,000 software, 14 million audio files, 4 million images, 2.4 million TV clips and 237,000 concerts. Access to the massive repository is available to researchers, historians, scholars, people with disabilities such as low vision and dyslexia, and the general public.

Among the platform’s most popular assets is the Wayback Machine. It is a digital archive of the World Wide Web that allows users to go back in time and see what websites looked like 25 years ago. The Wayback Machine recorded 682 billion web pages because, as the publisher explains, “like newspapers, the content published on the web was ephemeral, but unlike newspapers, no one backed it up.”

While the Internet Archive provides a window into the potential for online information and digital media to be made available to all in a manner similar to that of a public library, the repository has undergone a vicious attack by powerful business and financial interests.

In June 2020, four major publishers – John Wiley & Sons and three of the Big Five U.S. publishers, Hachette Book Group, HarperCollins and Penguin Random House – filed a lawsuit against the Internet Archive, claiming that the nonprofit ” is engaged in massive and willful copyright infringement.”

The lawsuit stems from corporate publishers’ response to an innovative temporary initiative launched by the Internet Archive during the early months of the coronavirus pandemic called the National Emergency Library. Given the impact of the public health emergency, the Internet Archive has decided to relax its book lending restrictions and allow multiple people to view the same digital copy of a book at once.

Until then, the Internet Archive had established a practice of buying copies of printed books, scanning them, and loaning them out to borrowers one at a time. During the launch of the emergency loan program, the Internet Archive made it clear that this policy would be in effect until the end of the pandemic. Additionally, the archive’s editors said the program was a response to the closing of library doors to the public during the pandemic. Under conditions where the Internet Archive was the only means of access to titles for many people, the policy was warranted and a creative response to COVID-19.

However, even if the $25 billion publishing industry’s claim were true that the emergency loan scheme was harmful – and it is not – it is clear that the purpose of their legal action is nothing less than the complete shutdown of the Internet Archive.

In their lawsuit, the publishers have identified 127 titles that they claim were shared digitally in violation of copyright laws and they are seeking to recover an estimated $19 million, equivalent to one year of the Internet Archive operating budget.

On July 8, the Electronic Frontier Foundation (EFF) submitted a 45-page brief in support of the Internet Archive’s motion asking federal court in New York to dismiss the publisher’s lawsuit on the grounds that it was an attempt to criminalize library lending. The EFF memorandum in support of a motion for summary judgment argues that the Internet Archive’s Controlled Digital Lending (CDL) program constitutes fair use as covered by copyright law and preserves traditional library lending in the digital world.

In an accompanying press release, the EFF explained, “The Internet Archive’s digital loan has not cost publishers a penny in revenue; in fact, concrete evidence shows that digital lending of archives does not and will not harm the market for books.

The EFF presents evidence that major publishers did not lose money from the Internet Archive program due to the fact that, when the titles in question were removed from the online library, “their print sales fell slightly deteriorated compared to the other books”.

A computer engineer and activist for a free and open Internet, Brewster Kahle, 61, is the founder of the Internet Archive. Speaking in an online forum about the lawsuit, Kahle argued that the Internet Archive is as important to the preservation and circulation of digital media as any other library is to physical media and that the nature of the libraries they themselves is attacked in the lawsuit.

“The Internet Archive is a nonprofit library,” Kahle said. “We are doing what libraries have always done. What libraries do is they buy, store and lend books to one reader at a time. … This lawsuit is not just an attack on the Internet Archive. It is an attack against all libraries. Publishers want to criminalize libraries that own, store and lend books in digital form. »

EFF’s Legal Director, Corynne McSherry, said: “The Internet Archive and the hundreds of libraries and archives that support them are neither hackers nor thieves. They are librarians, striving to serve their customers online as they have for centuries in the brick-and-mortar world.

Benjamin Saracco, a research and digital services faculty librarian at a New Jersey medical and hospital university library, told EFF: “The library’s practice of controlled digital lending was a lifeline in the early days. of the pandemic and has since become an essential service and public good.

The lawsuit brought by the four giant publishers — the product of growing industry consolidation and with combined revenues of $13.4 billion in 2021 — highlights several important features of today’s capitalist society.

It’s no coincidence that companies have taken to the Internet Archive’s emergency loan program that was launched during the pandemic. No section of the ruling establishment was willing to lift a finger to provide the public with the resources needed to adequately respond to COVID-19 and defeat the virus.

As publishing houses generated record sales in 2020 and 2021, they saw the pandemic as a way to boost their profits and an opportunity to go on the offensive against the nonprofit, free online resource for the public, and considered it an enemy that must be eliminated.

Finally, the publisher’s lawsuit is part of a larger attack on basic democratic rights, attacking the principle of library lending, a concept pioneered by American revolutionary, inventor and statesman Benjamin Franklin in Philadelphia in 1731. Franklin viewed the creation of the public library as a comprehensive cultural institution that provided the common benefit of a non-elitist membership. The first library not only lent books, but also a microscope and a telescope.

Of the Library Company in Philadelphia, which eventually served as the first Library of Congress, Franklin wrote, “these libraries have improved the general conversation of Americans, made ordinary merchants and farmers as intelligent as most other gentlemen country, and perhaps contributed in some measure to the position so generally taken in all colonies to defend their privileges.

As with everything else tied to America’s revolutionary democratic traditions, today’s capitalist elite sees library lending as a threat to their maniacal appetite for profit and the accumulation of personal wealth.

About Ellie Cohn

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