On July 8, 2022, Corynne McSherry, legal director at the Electronic Frontier Foundation, spoke at a press conference about the copyright lawsuit brought against the Internet Archive by four commercial publishers. These are her remarks:

The Internet Archive, headquartered in San Francisco, is a 501(c)(3) non-profit library dedicated to preserving and sharing knowledge. Through Controlled Digital Lending (“CDL”), the Internet Archive and other nonprofit libraries make and lend out digital scans of print books in their collections, subject to strict technical controls.  Each book loaned via CDL has already been bought and paid for, so authors and publishers have already been fully compensated for those books.

Publishers Hachette, HarperCollins, Wiley, and Penguin Random House sued the Archive in 2020, claiming that CDL violates their copyrights, costs them millions of dollars, and threatens their businesses. They are wrong: Libraries have paid publishers billions of dollars for the books in their print collections, and are investing enormous resources in digitization in order to preserve those texts. CDL merely helps libraries take the next step by ensuring the public can make full use of books that libraries already have bought and paid for. CDL is fundamentally the same as traditional library lending and poses no harm to authors or the publishing industry. 

Yesterday, we filed a brief asking a federal judge to put a stop to these publishers’ efforts to limit access to library books. Our motion for summary judgment, filed in the U.S. District Court for the Southern District of New York, explains that the Archive’s CDL program is not copyright infringement but a lawful fair use that preserves traditional library lending in the digital world.  Among other things, we explain how the Archive is advancing the purposes of copyright law by furthering public access to knowledge and facilitating the creation of new creative and scholarly works.  And Internet Archive’s digital lending hasn’t cost the publishers one penny in revenues. In fact, the concrete evidence shows that the Archive’s digital lending does not and will not harm the market for books.

The publishers are not seeking protection from harm to their existing rights,. They are seeking a new right foreign to American copyright law: the right to control how libraries may lend the books they own.   

They should not succeed. The Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves. They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world.  Copyright law does not stand in the way of a library’s right to lend its books to its patrons, one at a time. 

Briefing on these issues will continue over the next few months, and we hope to have a decision from the court sometime next year.