Hachette v. Internet Archive
Jay Peters and Sean Hollister:
A federal judge has ruled against the Internet Archive in Hachette v. Internet Archive, a lawsuit brought against it by four book publishers, deciding that the website does not have the right to scan books and lend them out like a library.
Judge John G. Koeltl decided that the Internet Archive had done nothing more than create “derivative works,” and so would have needed authorization from the books’ copyright holders — the publishers — before lending them out through its National Emergency Library program.
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He notes that the Google Books use was found “transformative” because it created a searchable database instead of simply publishing copies of books on the internet.
Mike Glyer (via Hacker News):
A copy of the decision can be downloaded from CourtListener.
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John G. Koeltl, District Judge of the U.S. Southern District of New York, granted summary judgment based on the record, as was requested by both sides. His analysis of the case is illustrated in the following quotes from the decision.
I have good feelings for the Internet Archive, but in this case it’s about a handful of books that are being copied and distributed a mere 5 years after initial publication, which I think a lot of people who want copyright shortened would still agree is quite a bit too short.
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Keep in mind that this isn’t about the Internet Archive specifically. If the court ruled it’s okay for them to copy and rent books, then anyone can copy and rent books, it undermines the entire market for books (and also web sites and images and other media, because this is the Internet Archive).
Previously:
Update (2023-04-03): Chris Freeland:
For those asking how you can support the Internet Archive, there will be a rally on the steps of the Internet Archive on Saturday, April 8 @ 11am PT.
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The nonprofit Internet Archive is appealing a judgment that threatens the future of all libraries.
This decision impacts libraries across the US who rely on controlled digital lending to connect their patrons with books online.
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But it’s not over—we will keep fighting for the traditional right of libraries to own, lend, and preserve books. We will be appealing the judgment and encourage everyone to come together as a community to support libraries against this attack by corporate publishers.
There are no details about what exactly they are appealing, so perhaps I’m missing something here, but this seems like an incredibly dishonest framing. I thought the whole point of the case is that Internet Archive was not doing what libraries have traditionally done. Their “library” was more like the book equivalent of Napster. And I don’t see how the ruling would affect “all libraries” or even those that “rely on controlled digital lending.”
Update (2023-04-04): The lawsuit happened as a result of the National Emergency Library and its unlimited “lending,” but it also covered the Internet Archive’s Controlled Digital Lending (CDL) program. So the part I wrote about CDL above is wrong. I had thought that this included services like OverDrive, but it has a more specific meaning. I think I was right about the other part:
Most libraries won’t be affected. I don’t see how they are fighting for the “traditional right of libraries to own, lend, and preserve books.” I haven’t seen anything about the lawsuit changing that.
Even with CDL, Internet Archive was not doing what libraries have traditionally done. They were not lending out what they had bought (physical books or licensed e-books). They were buying in the physical medium and lending out in the digital medium. Many of the books were already for sale/license in the digital medium, but Internet Archive bypassed those prices/terms/DRM and created their own digital versions without permission.
The Open Library is built around a concept called controlled digital lending, or CDL: a system where libraries digitize copies of books in their collections and then offer access to them as ebooks on a one-to-one basis (i.e., if a library has a single copy of the book, it can keep the book in storage and let one person at a time access the ebook, something known as the “own-to-loan ratio.”) CDL is different from services like OverDrive or Amazon’s Kindle library program, which offer ebooks that are officially licensed out by publishers. It’s a comparatively non-standard practice despite implementation in places like the Boston Public Library, partially because it’s based on an interpretation of US copyright doctrine that hasn’t been strictly tested in court — but this is about to change.
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Publishers took aim not just at the National Emergency Library, however, but also at the Open Library and the theory of CDL in general. The service constitutes “willful digital piracy on an industrial scale,” the complaint alleged. “Without any license or any payment to authors or publishers, IA scans print books, uploads these illegally scanned books to its servers, and distributes verbatim digital copies of the books in whole via public-facing websites. With just a few clicks, any Internet-connected user can download complete digital copies of in-copyright books.” More generally, “CDL is an invented paradigm that is well outside copyright law ... based on the false premise that a print book and a digital book share the same qualities.”
Update (2023-04-06): marwis:
Amazing how reckless IA is with their library program while at the same time being extremely cautions with Wayback Archive to the point of retroactively applying robots.txt and removing website archives because “they can’t afford even the smallest risk of being sued”.
We all screamed “Hey, you idiots are going to ruin everything if you act like the pandemic has magically nullified the concept of copyright” and they fucking did it anyway, and now exactly what we said would happen is happening. […] Controlled digital lending had a chance of getting off the ground. The IA’s Emergency Library’s unlimited digital lending burned it to the ground and stomped on the ashes.
However, as a long-time, regular, sustaining financial benefactor of IA, I was annoyed that they strayed into this set of activities in the first place and then dismayed when they pushed the envelope on it during C19 quarantines.
I, and others, predicted this trouble and even if there is not direct causation why do they have to tickle this dragon in the first place
The “emergency library” was a gift on a silver platter for the publishers. It was a reckless and stupid action that made the worst case scenario that the publishers wouldn’t have been taken seriously about a reality. Obviously the 1-1 lending was an issue to the publishers, but higher risk from a litigation perspective.
And it is strictly speaking not a thing that IA should be doing in the first place. They should have set up a completely different legal entity for this and kept them visibly separated on all fronts, especially online.
Their core service is too important to put at risk testing copyright law.
Update (2024-09-19): Ashley Belanger (via Hacker News, The Verge):
The Internet Archive has lost its appeal after book publishers successfully sued to block the Open Libraries Project from lending digital scans of books for free online.
Judges for the Second Circuit Court of Appeals on Wednesday rejected the Internet Archive (IA) argument that its controlled digital lending—which allows only one person to borrow each scanned e-book at a time—was a transformative fair use that worked like a traditional library and did not violate copyright law.
What the Internet Archive did was perhaps a legal long-shot, and I worry about the effects of this suit and the one over shellac 78s. But it is hard not to see publishers as the real villains in this mess. They are consolidating power and charging even legitimate libraries unreasonable amounts of money for electronic copies of books which the publishers and their intermediaries ultimately still control.
With licensed ebooks, the publishers have jacked up the prices so that (unlike with regular books), the library can’t just buy a single copy from any supplier and lend it out. Rather, publishers have made it prohibitively expensive to get ebook licenses, which come with ridiculous restrictions on how frequently books can be lent and more.
Update (2024-09-25): Jennie Rose Halperin (via Hacker News):
The implication that libraries can obtain digital books that already have licenses only through a proprietary app environment, however, is disheartening. In the decision, the judges write: “the library eBook lending market is thriving… [p]ublishers and their authors have tapped into a profitable, growing market.” This statement overlooks a number of key facts. More than 90% of the public library digital market is controlled by one private equity leveraged company that bypasses the library through their app, which makes digital readers think the rental app is their library. In the worst case scenario, this decision gives publishers carte blanche to continue to force libraries into unconscionable monopoly contracts and lock them into their closed surveillance apps. In the best case scenario, publishers, libraries, and authors band together to create services that support libraries.
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Before the pandemic, wasn't the Internet Archive doing exactly what libraries did, in comparison to the the print only days at least? While digital in nature, they only scanned books that were physically owned, only allowed users to check the book out one to one (so one copy is one lent, two copies is two lent, etc.). And aren't the books still wrapped in Adobe DRM for lending?
Was the case not about the unlimited lending Archive.org added as an emergency during the pandemic? Has Archive.org been blocked from returning to the one to one lending model? If they are blocked from returning to the one to one model, what was the legal reasoning?
@Nathan My understanding is that they are only blocked from the unlimited “lending,” and the rest is FUD. [Update (2023-04-04): Please see the update above.]
