Even Free Libraries Come With a Cost; The National Law Review, September 13, 2024

 Anisa Noorassa of McDermott Will & Emery , The National Law Review; Even Free Libraries Come With a Cost

"The US Court of Appeals for the Second Circuit affirmed a district court’s judgment of copyright infringement against an internet book archive, holding that its free-to-access library did not constitute fair use of the copyrighted books. Hachette Book Group Inc. v. Internet Archive, Case No. 23-1260 (2d Cir. Sept. 4, 2024) (Menashi, Robinson, Kahn, JJ.).

Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House (collectively, the publishers) brought suit against Internet Archive alleging that its “Free Digital Library,” which loans copies of the publishers’ books without charge, violated the publishers’ copyrights. Internet Archive argued that its use of the publishers’ copyrighted material fell under the fair use exception to the Copyright Act because Internet Archive acquired physical books and digitized them for borrowing (much like a traditional library) and maintained a 1:1 ratio of borrowed material to physical copies except for a brief period during the COVID-19 pandemic.

The district court reviewed the four statutory fair use factors set forth in § 107 of the Copyright Act:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
• The nature of the copyrighted work.
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
• The effect of the use upon the potential market for or value of the copyrighted work.

The district court found that Internet Archive’s use of the works was not covered by the fair use exception because its use was non-transformative, was commercial in nature due to its solicitation of donations, and was disruptive of the market for e-book licenses. Internet Archive appealed.

The Second Circuit affirmed, addressing each factor in turn."

Internet Archive Court Loss Leaves Higher Ed in Gray Area; Inside Higher Ed, September 9, 2024

 Lauren Coffey, Inside Higher Ed; Internet Archive Court Loss Leaves Higher Ed in Gray Area

"Pandemic-era library programs that helped students access books online could be potentially threatened by an appeals court ruling last week. 

Libraries across the country, from Carnegie Mellon University to the University of California system, turned to what’s known as a digital or controlled lending program in 2020, which gave students a way to borrow books that weren’t otherwise available. Those programs are small in scale and largely experimental but part of a broader shift in modernizing the university library.

But the appeals court ruling could upend those programs...

Still, librarians at colleges and elsewhere, along with other experts, feared that the long-running legal fight between the Internet Archive and leading publishers could imperil the ability of libraries to own and preserve books, among other ramifications."

Internet Archive forced to remove 500,000 books after publishers’ court win; Ars Technica, June 21, 2024

ASHLEY BELANGER, Ars Technica; Internet Archive forced to remove 500,000 books after publishers’ court win

"As a result of book publishers successfully suing the Internet Archive (IA) last year, the free online library that strives to keep growing online access to books recently shrank by about 500,000 titles.

IA reported in a blog post this month that publishers abruptly forcing these takedowns triggered a "devastating loss" for readers who depend on IA to access books that are otherwise impossible or difficult to access.

To restore access, IA is now appealing, hoping to reverse the prior court's decision by convincing the US Court of Appeals in the Second Circuit that IA's controlled digital lending of its physical books should be considered fair use under copyright law."

Amicus Briefs Filed in Internet Archive Copyright Case; Publishers Weekly, March 25, 2024

Andrew Albanese , Publishers Weekly; Amicus Briefs Filed in Internet Archive Copyright Case

"Internet Archive lawyers filed their principal appeal brief on December 15, and 11 amicus briefs were filed in support of the Internet Archive a week later, in December, representing librarians and library associations, authors, public advocacy groups, law professors, and IP scholars, although some of the IA amicus briefs are presented as neutral.

The briefs are the latest development in the long-running copyright infringement case and come a year after a ruling by judge John G. Koeltl on March 24, 2023 that emphatically rejected the IA’s fair use defense, finding the scanning and lending of print library books under a protocol known as “controlled digital lending” to be copyright infringement.

The Internet Archive’s reply brief is now due on April 19, and oral arguments are expected to be set for this fall."

Internet Archive Files Appeal in Copyright Infringement Case; Publishers Weekly, September 11, 2023

 Andrew Albanese, Publishers Weekly ; Internet Archive Files Appeal in Copyright Infringement Case

"As expected, the Internet Archive this week submitted its appeal in Hachette v. Internet Archive, the closely-watched copyright case involving the scanning and digital lending of library books.

In a brief notice filed with the court, IA lawyers are seeking review by the Second Circuit court of appeals in New York of the "August 11, 2023 Judgment and Permanent Injunction; the March 24, 2023 Opinion and Order Granting Plaintiffs’ Motion for Summary Judgment and Denying Defendant’s Motion for Summary Judgment; and from any and all orders, rulings, findings, and/or conclusions adverse to Defendant Internet Archive."

The notice of appeal comes right at the 30-day deadline—a month to the day after judge John G. Koeltl approved and entered a negotiated consent judgment in the case which declared the IA's scanning and lending program to be copyright infringement, as well as a permanent injunctionthat, among its provisions, bars the IA from lending unauthorized scans of the plaintiffs' in-copyright, commercially available books that are available in digital editions."

Internet Archive’s digital library has been found in breach of copyright. The decision has some important implications; The Conversation, August 22, 2023

Agata Mrva-Montoya, Lecturer, Department of Media and Communications, University of Sydney, The Conversation; Internet Archive’s digital library has been found in breach of copyright. The decision has some important implications

"The outcome of the court case may affect the fate of controlled digital lending more broadly."

Judgment Entered in Publishers, Internet Archive Copyright Case; Publishers Weekly, August 14, 2023

  Andrew Albanese, Publishers Weekly; Judgment Entered in Publishers, Internet Archive Copyright Case

"More than four months after a federal judge found the Internet Archive liable for copyright infringement for its program to scan and lend library books, the parties have delivered a negotiated agreement for a judgment to be entered in the case. But a final resolution in the case could still be many months, if not years, away, as Internet Archive officials have vowed to appeal.

The jointly proposed agreement includes a declaration that cements the key finding from Judge John G. Koeltl’s March 24 summary judgment decision: that the IA's unauthorized scanning and lending of the 127 in-suit copyrighted books under a novel protocol known as “controlled digital lending” constitutes copyright infringement, including in the IA's controversial "National Emergency Library" (under which the IA temporarily allowed for simultaneous access to its collections of scans in the the early days of the pandemic, when schools and libraries were shuttered).

The proposed agreement also includes a permanent injunction that would, among its provisions, bar the IA’s lending of unauthorized scans of the plaintiffs' in-copyright, commercially available books, as well as bar the IA from “profiting from” or “inducing” any other party’s “infringing" copying, distribution, or display of the the plaintiffs' books "in any digital or electronic form.” Under the agreement, the injunction will not be stayed while the case is on appeal—essentially meaning that once notified the IA will have to stop making unauthorized scans of the plaintiff Publishers' copyrighted works available to be borrowed. Meanwhile, AAP officials said a "side agreement" with the IA will motivate the IA to similarly resolve issues with other non-plaintiff AAP member publishers. 

The parties left one final dispute for Koeltl to clean up, however: what books will be “covered” by the proposed injunction?"

Publishers beat Internet Archive as judge rules e-book lending violates copyright; Ars Technica, March 27, 2023

ASHLEY BELANGER, Ars Technica; Publishers beat Internet Archive as judge rules e-book lending violates copyright

Internet Archive: Judge’s copyright ruling is a “blow to all libraries.”

"On Friday, a US district judge ruled in favor of book publishers suing the Internet Archive (IA) for copyright infringement. The IA’s Open Library project—which partners with libraries to scan print books in their collections and offer them as lendable e-books—had no right to reproduce 127 of the publishers’ books named in the suit, judge John Koeltl decided."

Why the Internet Archive’s copyright battle is likely to come to a very bad end; Media Nation, March 21, 2023

DAN KENNEDY, Media Nation ; Why the Internet Archive’s copyright battle is likely to come to a very bad end

"The Archive ramped up its lending during the COVID-19 pandemic and has not cut back even though life has more or less returned to normal. The Archive argues that it’s doing what any library does — it’s lending books that it owns, and it’s controlling how many people can borrow a book at any given time. In other words, it’s not simply making electronic versions of its books available for mass download. That may show some desire to act responsibly on the Archive’s part, but that doesn’t make it legal."

Book publishers with surging profits struggle to prove Internet Archive hurt sales; Ars Technica, March 20, 2023

ASHLEY BELANGER , Ars Technica; Book publishers with surging profits struggle to prove Internet Archive hurt sales

"Today, the Internet Archive (IA) defended its practice of digitizing books and lending those e-books for free to users of its Open Library. In 2020, four of the wealthiest book publishers sued IA, alleging this kind of digital lending was actually “willful digital piracy” causing them “massive harm.”"

The Internet Archive Is a Library; Inside Higher Ed, March 17, 2023

Dave Hansen, Deborah Jakubs, Chris Bourg, Thomas Leonard, Jeff MacKie-Mason, Joseph A. Salem Jr., MacKenzie Smith, and Winston Tabb, Inside Higher Ed; The Internet Archive Is a Library

"Why is it so important to the publishers that the Internet Archive not be identified as a library? Primarily because Congress has long recognized the valuable role that libraries play in our copyright system and has created special allowances in the law for their work. In this suit, the publishers seek to redefine the Internet Archive on their own terms and, in so doing, deny it the ability to leverage the same legal tools that thousands of other libraries use to lend and disseminate materials to our users.

The argument that the Internet Archive isn’t a library is wrong. If this argument is accepted, the results would jeopardize the future development of digital libraries nationwide. The Internet Archive is the most significant specialized library to emerge in decades. It is one of the only major memory institutions to be created from the emergence of the internet. It is, and continues to be, a modern-day cultural institution built intentionally in response to the technological revolution through which we’ve lived."

The Top 10 Library Stories of 2022; Publishers Weekly, December 9, 2023

Andrew Albanese, Publishers Weekly; The Top 10 Library Stories of 2022

PW looks back at the library stories that captivated the publishing world this year, and what they portend for 2023

"6. A Federal Judge Blocks Maryland’s Library E-book Law

It was big news in 2021 when legislators in Maryland unanimously passed a law to protect libraries in the digital marketplace. But after the Association of American Publishers sued, a federal court struck the law down in February 2022.

Introduced in January 2021, the Maryland law emerged after more than a decade of tension in the library e-book market,with librarians complaining of non-negotiated, unsustainable prices for digital licenses. More specifically, the law came as a direct response to Macmillan’s controversial (and since-abandoned) 2019 embargo on frontlist e-book titles in libraries, which librarians rejected as fundamentally inequitable.

From the outset, however, the AAP insisted that Maryland’s law was preempted by the federal Copyright Act. And on February 16, federal judge Deborah Boardman agreed. “The State’s characterization of the Act as a regulation of unfair trade practices notwithstanding, the Act frustrates the objectives and purposes of the Copyright Act,” Boardman concluded in a 28-page opinion. In a subsequent June 13 opinion and order, Boardman issued a declaratory judgment deeming the Maryland law “unconstitutional and unenforceable.”

The decision, combined with an 11th-hour veto of a similar bill in New York in December 2021, has served the AAP’s aim, all but shutting down similar legislative efforts in at least six other states. But the library e-book market remains contentious, and as 2022 draws to a close, library advocates in several states tell PW they have not given up the fight and are working on revised legislative language that won’t run afoul of federal copyright law.

7. Lawsuit over Internet Archive’s Book Scanning and Lending Advances

After more than two years of legal wrangling, a federal judge in New York City is now ready to hear arguments for summary judgment in a contentious copyright case filed by four major publishers against the Internet Archive over its program that scans and lends digital scans of library books using a method known as controlled digital lending (CDL).

In a final round of briefs filed on October 7, attorneys for the publishers reiterated their contention that the IA’s program is blatant copyright infringement on a massive scale. “In the end, the Internet Archive asks this Court to adopt a radical proposition that would turn copyright law upside down by allowing IA to convert millions of physical books into e-book formats and distribute them worldwide without paying rights holders,” the publisher brief states.

Internet Archive lawyers counter that its scanning and lending of legally acquired books is legal, and that the evidence shows no market harm to the publishers. “All CDL does, and all it can ever do, is offer a limited, digital alternative to physically handing a book to a patron,” the IA brief states. “What the publishers who have coordinated to bring this lawsuit hope to obtain from this Court is not protection from harm to their existing rights. Instead, they seek a new right foreign to American copyright law: the right to control how libraries lend books.”

With the cross-motions for summary judgment now fully briefed, a hearing before Judge John G. Koeltl is likely the next step. But barring a settlement, the case will probably not be resolved anytime soon. If neither side prevails at the summary judgment stage, the case heads to a trial. And however the summary judgment ruling goes, an appeal is almost certain."

PRH, Internet Archive Clash Over ‘Maus’; Publishers Weekly, February 15, 2022

Calvin Reid, Publishers Weekly; PRH, Internet Archive Clash Over ‘Maus’

"However, Lisa Lucas, senior v-p and publisher of Pantheon Schocken, the PRH division which publishes Maus, denies the allegation. In response, Lucas emphatically denied the claim. “That is not true,” she said, framing the issue around copyright concerns rather than consumer demand. “Art Spiegelman has never consented to an e-book of Maus," Lucas said. "Therefore, PRH asked the Internet Archive to remove the PDF and stop pirating Maus because it violates Art Spiegelman’s copyright.”

Although best known for its collection of public domain titles, the Internet Archive also offers a lending library of more than 2 million modern titles “not in the public domain,” Freeland said. IA offers digital lending of these titles under a controversial policy called Controlled Digital Lending, or CDL, in which IA scans the book and lends out a PDF of the title, one copy per lender at a time, much like a physical book.

In June 2020, four publishers, including PRH, filed a lawsuit against the IA charging it with copyright infringement. The case is still working its way through the courts."

Internet Archive to Publishers: Drop ‘Needless’ Copyright Lawsuit and Work with Us; Publishers Weekly, July 23, 2020

Andrew Albanese, Publishers Weekly; Internet Archive to Publishers: Drop ‘Needless’ Copyright Lawsuit and Work with Us

"During a 30-minute Zoom press conference on July 22, Internet Archive founder Brewster Kahle urged the four major publishers suing over the organization’s book scanning efforts to consider settling the dispute in the boardroom rather than the courtroom.

“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."

Reforming Digital Lending Libraries and the End of the Internet Archive; Jurist, July 20, 2020

Binit Agrawal, Jurist; Reforming Digital Lending Libraries and the End of the Internet Archive

"The lack of certainty relating to the legality of CDL as fair use is hampering its growth by creating a chilling effect. Libraries are under the fear of costly litigations. IA itself is under the risk of bankruptcy, as the publishers are not inclined to take back their suit, even after IA stopped ELP. This is the very problem section 108 intended to resolve. Hence, it is pertinent that the section is amended to meet the needs of the digital age and provide certainty in this regard. Some countries have already moved in this direction. While Canada has permitted a limited right to provide digitized copies to patrons of other libraries, the EU has been considering proposals to allow digitization of cultural heritage institutions, including libraries."

Controlled Digital Lending Concept Gains Ground; Library Journal, November 15, 2018

Matt Enis, Library Journal; Controlled Digital Lending Concept Gains Ground

"A White Paper on Controlled Digital Lending of Library Books, by Courtney and coauthor David R. Hansen, associate university librarian for Research, Collections and Scholarly Communications, Duke University Libraries, was written in support of the position statement, and delves further into “the legal and policy rationales for the [CDL] process…as well as a variety of risk factors and practical considerations that can guide libraries seeking to implement such lending…. Our goal is to help libraries and their lawyers become more comfortable with the concept by more fully explaining the legal rationale for controlled digital lending, as well as situations in which this rationale is the strongest.”

The white paper notes that the Internet Archive’s “CDL-like” system has been in operation for eight years, and that the Georgetown Law Library operates a CDL service. But for the library field, the concept is still relatively new.

“This is how things start,” said [Kyle K. ] Courtney [copyright advisor for Harvard University]. “You put out a position statement, you back it up with a white paper, and you see the conversations that happen.” As libraries establish programs and platforms, use cases and best practices begin to emerge."