Major Publishers Sue The Internet Archive's Digital Library Program In The Midst Of A Pandemic

from the not-a-good-look-guys dept

For many years, we’ve said that if the public library were invented today, the book publishers would sue it out of existence. It appears that the big book publishers have decided to prove me right, as they have decided to sue the Internet Archive for lending ebooks without a license.

Over the last few months, we’ve discussed why publishers and authors were overreacting in their verbal attack on the Internet Archive’s decision to launch a “National Emergency Library” to help out during a pandemic. While many publishers and authors declared this to be “piracy,” that did not square with reality. The Internet Archive was relying on a variety of precedents regarding the legality of libraries scanning books and lending books, as well as around fair use, to argue that what it was doing was perfectly legal. Indeed, the deeper you looked at the issue, the more it looked like the publishers and authors were upset with the Internet Archive for being a library, since libraries don’t need special licenses to lend out books.

In other words, this was yet another attack on property rights. Publishers and some authors were trying to argue that the Internet Archive needed extra licenses to lend out legally made scans of legally obtained books. And to respond to a few common criticisms of the NEL: they were doing this since so many libraries and schools around the world were shuttered due to the pandemic, meaning that millions of books were literally collecting dust on shelves, un-lendable. More importantly, the NEL was not targeting recent releases (all books in the NEL are over 5 years old, and the commercial life of nearly every book is much shorter than that). Finally, contrary to some claims, the books in the NEL are not “bit for bit copies” of high quality ebooks. They are relatively low quality scans. If a more legit version is available, nearly any reasonable person would go for that instead (indeed, I’ve personally purchased multiple books after first borrowing copies from the Open Library before deciding to get a permanent copy). Also, most of the books available in the NEL are simply not available at all in ebook format, meaning that they’re not available at all during the pandemic for many people.

There was some chatter that publishers might choose not to sue the Internet Archive over this, because losing this fight would seriously challenge a bunch of other copyright claims that they rely on. But, come on. These guys are so obsessed with copyright, how could they not sue? So, earlier this week, all the big publisher teamed up to sue the Internet Archive, represented by former RIAA lawyer Matt Oppenheim, who has a long history of being on the bad side of nearly every big copyright case.

Here’s the thing, though: the publishers didn’t just decide to sue over the National Emergency Library: instead they’re also suing over the entire “Controlled Digital Lending” process. That’s the program that the Authors’ Guild has been whining about, which is the underpinning of the NEL. The CDL/Open Library program involves letting libraries lend out digital books if they retain a physical copy of the book on the shelf (so maintaining a one-to-one relationship between books lent out and books that the libraries have in their possession). The NEL took away that limitation, with the argument that this was allowed due to their reading of fair use in the midst of a pandemic with so many books locked up.

While I support the NEL — I can recognize that courts may not buy their fair use arguments. On the CDL/Open Library front, though, that’s just blatantly attacking a very standard library procedure. There can be no argument of “lost revenue” from the CDL, unless you’re attacking the very basis of libraries themselves. And that’s what the lawsuit appears to do.

The scale of IA?s scheme is astonishing: At its ?Open Library,? located at and (together, the ?Website?), IA currently distributes digital scanned copies of over 1.3 million books. And its stated goal is to do so for millions more, essentially distributing free digital copies of every book ever written. Despite the ?Open Library? moniker, IA?s actions grossly exceed legitimate library services, do violence to the Copyright Act, and constitute willful digital piracy on an industrial scale. Consistent with the deplorable nature of piracy, IA?s infringement is intentional and systematic: it produces mirror-image copies of millions of unaltered in-copyright works for which it has no rights and distributes them in their entirety for reading purposes to the public for free, including voluminous numbers of books that are currently commercially available.

Except the identical argument applies to public libraries lending physical copies as well. It does not “grossly exceed legitimate library services.” It makes books it has in its possession available for borrowing. Just like a library. Yes, the books are digitized, but libraries also distribute exact copies of books in their entirety for reading purposes to the public for free. Including voluminous numbers of books that are currently commercially available.

That’s a LIBRARY.

The lawsuit tries to pay lip service to libraries, and to argue that what IA is doing is somehow different than a library, but it doesn’t hold up to much scrutiny. Instead, the lawsuit and the Publisher’s Association’s press release about this are filled with nonsense rhetoric about how crucial books are to society and how evil, evil piracy is. From the lawsuit:

Books have long been essential to our society. Fiction and non-fiction alike, they transport us to new worlds, broaden our horizons, provide us with perspective, reflect the evergrowing knowledge of humanity in every field, spark our imaginations and deepen our understanding of the world. Yet, books are not self-generating. They are the product of training and study, talent and grit, perseverance and creativity, investment and risk, and untold hours of work.

That’s right: and for tons of people they way they read those books is from a library. The Association of American Publishers, led by fired former Copyright Register Maria Pallante is spitting fire over this:

Despite the self-serving library branding of its operations, IA?s conduct bears little resemblance to the trusted role that thousands of American libraries play within their communities and as participants in the lawful copyright marketplace. IA scans books from cover to cover, posts complete digital files to its website, and solicits users to access them for free by signing up for Internet Archive Accounts. The sheer scale of IA?s infringement described in the complaint?and its stated objective to enlarge its illegal trove with abandon?appear to make it one of the largest known book pirate sites in the world. IA publicly reports millions of dollars in revenue each year, including financial schemes that support its infringement design.

In willfully ignoring the Copyright Act, IA conflates the separate markets and business models made possible by the statute?s incentives and protections, robbing authors and publishers of their ability to control the manner and timing of communicating their works to the public. IA not only conflates print books and eBooks, it ignores the well-established channels in which publishers do business with bookstores, e-commerce platforms, and libraries, including for print and eBook lending.

Yeah, but that’s kinda the point, isn’t it? The publishers have been chipping away at “libraries” for years. Before ebooks, libraries could buy books and lend them out. They didn’t need a special license. However, in recent years, publishers have rushed into the opportunity created by ebooks to change that, and to require licenses (crazy, expensive licenses) for ebooks. Just last fall we noted how publishing giant Macmillan (which, somewhat oddly, is the one big publishing house that is not a plaintiff) had gone to war with libraries, using its extreme ebook pricing and licensing terms to basically kill the market for ebook library lending.

It’s that very new imbalance that the CDL/Open Library system was designed to fight back against. But, no, the publishers act as if they’ve always been able to block libraries from lending.

And, of course, filing this lawsuit in the midst of a pandemic (not to mention all the social unrest) in which libraries around the globe remain closed is just… crass.

For what it’s worth, in looking down the list of works sued over, and doing a spot sampling, it looks like at least some (though not all) of the works being sued over are no longer available through the National Emergency Library. Since the NEL has always had a simple opt-out system, it does make you wonder why these publishers and authors didn’t just make use of that. But also looking over that list, I see a bunch of books that I know are read in schools — meaning that these publishing houses likely have just screwed over a bunch of teachers and students, many of whom already have physical copies of books, but find them inaccessible for the kids to read while we all still remain under lockdown.

So much for those books being “essential to our society.”

But, of course, this is copyright, and the rule of the land tends to be that when big legacy copyright holders file lawsuits, they tend to win. I’d say there’s a more than even chance that the Internet Archive loses. Not because it should, but because when big old industries scream copyright infringement, we’ve seen the courts buy it over and over again, even when the legal arguments are nonsensical. And, in this case, the Internet Archive’s legal theories are certainly untested. There isn’t real legal precedent to guide this. For its part, the Internet Archive has said that they hope this can be resolved quickly, however, there are very real concerns that this fight could bankrupt the entire Internet Archive.

I do wonder if the authors who spoke out against this really want to shut down such an important institution just so they can sell a couple more books.

Filed Under: , , , , , ,
Companies: aap, hachette, harper collins, internet archive, john wiley, penguin random house

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Comments on “Major Publishers Sue The Internet Archive's Digital Library Program In The Midst Of A Pandemic”

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Anonymous Coward says:

I do wonder if the authors who spoke out against this really want to shut down such an important institution just so they can sell a couple more books.

More likely, this will ass impetus to such projects as open source teaching materials etc. It may also kick start efforts to replicate the I.A. and increase support for sci-hub.

aerinai (profile) says:

Unfortunately, I don’t see how the court will side with IA on this… I agree completely this SHOULD be legal in theory, but it always seemed that their argument of relaxing the 1:1 was just asking for trouble. What would stop literally anyone from doing this for any justification in the future? Remember, there is precedent being set and I can’t imagine any court will stick their neck out as far to say "well, it was okay because of unprecedented circumstances" and have it survive up through the Supreme Court. It’s more likely going to be "It Quacks Like a Duck" and killed like Aereo.

WITH THAT BEING SAID — I would like to see the specifics of how many times that 1:1 ratio was actually overused… I can’t imagine that many times; even with the scale of the internet, I can’t imagine that too many of the wait lists were improperly accessed given the age of the books that were released.

Since this is not a class-action, and the works in question are specifically called out in the lawsuit, AND they offered and opt-out, I would hope a judge would not see this as ‘willful infringement’ and instead see this as a business model gone bad and just a light wrist strap at worse (obviously a win would be better). Also the fact that IA isn’t charging for it should work in their favor, though the lawyers seem to be tipping their hand to overcome that obstacle.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re:

Unfortunately, I don’t see how the court will side with IA on this…

Fair use can be interpreted very widely, but that will come down to the judge. And the judges at every stage of appeal. I’d be surprised if they could get a string of judges all supporting this as fair use.

Since this is not a class-action, and the works in question are specifically called out in the lawsuit, AND they offered and opt-out, I would hope a judge would not see this as ‘willful infringement’

Courts should give zero weight to opt-out abilities. Not to mention that most publishers already fill their front matter with various legal threats about how copying is the devil and is never allowed. People can’t be expected to opt out of potentially hundreds of web sites. It’s the same argument that spammers use.

Anonymous Coward says:

I keep saying it and keep being both laughed at and ignored in equal shares but when are people, us, going to wake up, going to admit that every section of the entertainment industries are going down the same road! They’re doing whatever it takes to take control of the Internet and everything else, everywhere else that they can, the object being to control who can do what, with what and if you do different, get sued! Nothing is going to belong to us, even though good, hard-earned cadh was paid and the protection of everything is going to get longer and tougher and less accessible. We’re being railroaded and nothing is being done for us, not one person of influence gives a toss, allowing/helping our rights to be further erroded. Doon it’s gonna be too late to reverse, soon the 3 generations protected by copyright will be lengthened further, soon no one will remember at sll ehy copyright was started or it’s aim, soon we’ll be so enslaved it wont matter!

Anonymous Coward says:

Copyright garbage ruined the Internet archive for years

Even basic things like wayback machine has been ruined by retroactive enforcement on parked sites, who don’t have anything to do with the original site. It’s become increasingly difficult to do research. Copyright is so broken its literally ruining the past.

Anonymous Coward says:

On the CDL/Open Library front, though, that’s just blatantly attacking a very standard library procedure.

This "standard library procedure" is DRM. DRM is an attack on the public, and libraries shouldn’t be attacking the public. The entire model of "lending" digital data is, and has always been, utter nonsense. I can’t support the publishers, but we should not let this become normal.

And of course the publishers are suing. History has given them a clear message: no matter how much they shit on the public, the public will keep giving them money. Often out of some vague sense that it would be unethical to copy the data otherwise, which is a good bit of brainwashing.

Anonymous Coward says:

Re: Re: Re:

Blame the publishers that forced to use the DRM CDL model or be unable to lend ebooks at all.

In this case, nobody gave the Archive permission to do anything, with or without DRM. They chose to push DRM.

In general, libraries are choosing to "lend" e-books. They’re buying into the whole ridiculous model, accepting draconian terms from the publishers. They deserve some blame for that. How’s anything going to change, if they don’t push back and they condition their clients to believe it’s all normal?

Okay, sometimes they’ve complained about the terms, like when the publishers wanted a low limit on the number of times a library could "lend" each book with DRM. That reminds me of the Churchill quote: "We’ve already established what you are. Now we’re just haggling about the price."

Anonymous Coward says:

Re: Re: Re: Re:

In this case, nobody gave the Archive permission to do anything, with or without DRM. They chose to push DRM.

No. DRM is the only "option" they have to abide by the legal terms that defines the "lending" as a library rental.

Computers by nature make copies of data. There is no "moving" of data from place to place. No, even that "Move" command is just implemented as a copy and delete all rolled up into one command with a different name. Prior to the delete part being executed there are two copies of the exact same data on the system. You can’t call something "rental" when the lender isn’t deprived of anything by the act of "lending." That’s an act of duplication. I.e. Copying.

The DRM’s whole purpose is to enforce the "delete" portion after certain criteria is met, in a way that the person who "rented" the material can’t prevent or undo. Of course, this is utterly pointless for multiple reasons:

  1. The DRM executes on the "renter’s" device. As such they can prevent it from functioning the way it was intended.
  2. As most things DRM is attached to are actually non-interactive media, i.e. complete works at the time of acquisition, the mere act of viewing the material during the period when the DRM is intended to allow access allows for copying it in it’s entirety. Even for interactive media where consumer input and processing is required to complete the work, the instructions and materials needed to do so are often given along with everything else, so copying is still possible. (This is also the reason why interactive media is so hellbent on pushing streaming as it prevents / delays copying by withholding the needed instructions and materials from the consumer.)
  3. DRM cannot truly defend itself, and consumers aren’t constantly monitored with a gun to their head when interacting with DRM’d works. Given enough time and effort, the DRM will be broken.

Of course, none of this matters from a legal perspective because the law is not required to acknowledge reality. As a result, even though the most obvious thing to do if you were trying to increase access to works for the good of the general public would be to allow the copying, the legal reality is unless they put ineffective restrictions on it they will be visited by big brutes with guns and made to suffer by those seeking more green paper.

So, enjoy your DRM laden crap. After all it’s not like the public cares enough to even realize the reason why the DRM is there in the first place before whining about it, and giving the people pushing it’s adoption more green paper.

GHB (profile) says:

There is one counter-argument against the core reason to sue IA.

AAP sued the IA for the main reason is because those publishers and authors sees NEL as a lost sales when they’re already in a tight financial situation due to corvid-19.

It was stated in their lawsuit letter that authors “needed to survive” on the paragraph talking about the “waitlist” restriction being removed.

To pirate, or customers not being able to buy books from the bookstore (because they were closed from the virus or locked at home) are both financial loss. How does the IA makes this financial loss worse? Imagine if the IA didn’t run the NEL, the financial situation would be the same, if not, similar.

All other arguments to sue the IA was procrastinated till now. Those are true way back since CDL was created around 2011. I hope the judge doesn’t suddenly change that to now be made illegal despite this act has been done in the past that the copyright holders were OK with it.

WarioBarker (profile) says:

From what I’ve read, the Internet Archive could use the first-sale doctrine as a defense: it permits library lending to begin with (thereby extending to the ability to make and lend digital copies), plus the fact that IA’s library of books are primarily those that are long since out-of-print and can be difficult to find physical copies of on the second-hand market. There’s also the matter of preservation.

But man…if IA goes bankrupt from this, I expect some not-insignificant backlash.

Anonymous Coward says:

Re: Re:

I’ve already emailed the publishers mentioned and let them know in no uncertain terms that I’ll no longer be buying their wares and I’ll be letting my large circle of aquaintances know.

And I buy a LOT of books. I know that my own non-contribution to them wont harm them much, but at least they know it and why now. I just hope a lot more people do the same.

So people, let them know how you feel. Who knows, if the backlash is big enough and they receive enough complaints…

And wouldn’t it be a shame if all books by these publishers started receiving very negative reviews 🙂

This comment has been deemed insightful by the community.
Anonymous Coward says:

Copy Right

One tangential issue that is becoming clear. With many of these book being out of print, and no eBook version available. It is quite clear that there is no public benefit to the public fro the repeated extensions of copyright. I don’t believe that the original intent of copyright was to limit access to the works of useful arts and sciences, but to expand it. Publishing was quite expensive, until the internet came along and digital copying became almost cost less (I will admit that there are small costs for digital storage on eBook commerce sites). With a very low cost option for the publisher(note, I don’t reference the writer of said work who signed the right over). It is high time that the law needs to be amended to, the publisher, to maintain the right on the work, must make the work widely commercially available to maintain the monopoly on said work.
The publishers will howl about profitability, but I say, If you can’t fond a way to make money on a work in such a low cost environment, then you don’t deserve to deprive the public of their right to the work. Again, there must be a public balance, and locking a work of the useful arts and sciences from said public is an abrogation of the giving access to the public that the law was founded on.

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Scary Devil Monastery (profile) says:

Re: Re: Techdirt Uses Sensationalist Headline In The Midst Of A

Oh, look, the resident alt-right troll is back with the breaking headline of…wait for it…"But Obama".

In other news the fact that a black man became president is still an unending source of PTSD for Stormfront and Breitbart regulars who still react to the very name with a chorus of stifled sobbing, shrieking, outraged hysterics, and more than the occasional hurled lump of feces.

An anonymous source alleges that this frustration has been further aggravated by the "anti-conservative" bias of social media.
"Ah tuk mah trousers off and took a dump. Pointed at da heap and spoke da unholy name o dat kenyan animal. Den dose namby-pamby godless liberals all tole me ta leave!" he complained "Dat’s CENSORSHIP dat is! Good conservative values it was, and dey all tole me ta flush it! Dose boys cain’t be white!".

News at 11.

This comment has been deemed insightful by the community.
Blake C. Stacey (profile) says:


As a scientist and teacher, I will not write or peer-review for any journal from these publishers, nor will I use their books in my classroom, because their emotionally immature stunt risks the collective memory of the Internet.

Whether or not the "National Emergency Library" is ultimately a reasonable idea, there are good ways and bad ways to approach the issue, and Hachette, HarperCollins, Wiley and Penguin Random House have chosen a bad one. For two decades, scholars have been asking, "What value do publishers actually add?" Answers vary, but a bitter "not bloody much" is prominent among them. Undermining our social and technical infrastructure in a time of global crisis only gives that view more weight.

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Anonymous Coward says:

Boycot publishers and more importantly authors.

As a long time IA supporter (including money), obviously I side with the IA.

There isn’t much I can do, but I can boycott the publishers. I’ve already researched the firms involved, including their "imprint" labels. They won’t get any more money from me.

Furthermore, and more important, I’m researching authors. I won’t purchase works from authors who sign with these offensive publishers. I’m debating whether or not to politely inform authors individually, where contact information can be found. Such personal contact, even when polite, can be taken ill. None the less, no matter how well an author does his writing, the business of being an author has it’s responsibilities. Being a good writer doesn’t justify selling through villain publishers.

I urge all who read this to carefully evaluate their literary needs. Most subjects have multiple authors selling through multiple publishers. Please try to avoid the plaintiffs and their authors. Thanks.

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Anonymous Coward says:

Re: Re: Boycot publishers and more importantly authors.

Not really, if authors keep supporting these publishers, then they wont learn and will keep going exactly the same way as they always have.

If an author is bringing in good sales, I’m sure another publisher would only be too happy to publiosh their future works (barring contractual obligations). If they aren’t then it won’t really hurt them much.

Anonymous Coward says:

Re: Also...

"However, the publishers may not be interested in forcing the Internet Archive out of business. Their goal is to get the Internet Archive to stop scanning their books. Bold If they win the lawsuit, they might force the group to shut down its book scanning operation and promise to not start it up again, then allow it to continue its other, less controversial offerings. Bold"

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