On Friday, September 2, we filed a brief in opposition to the four publishers that sued Internet Archive in June 2020: Hachette Book Group, Harper Collins Publishers, John Wiley & Sons, and Penguin Random House. This is the second of three briefs from us that will help the Court decide the case.
As many of you know, these four publishers sued the Internet Archive to try to shut down our digital lending program. The lawsuit has been ongoing for over two years now. In addition to the papers that have gone in so far, there will be one more opportunity, later this fall, for the parties to file arguments with the court. These will be the “reply” briefs. At that point, the filing of papers tends to cease. The Court will then decide whether or not it wants to hear from the parties in person–through “oral argument.” After that, the Court will make a decision on this set of briefs. That could resolve the case in its entirety, or it could lead to a trial and/or appeal. In the end, the lawsuit could take some years to resolve.
Our opposition brief responds to the arguments raised in the publisher’s motion for summary judgment. There, some of the world’s largest and most-profitable publishers complained that sometimes “Americans who read an ebook use free library copies, rather than purchasing a commercial ebook.” They believe that copyright law gives them the right to control how libraries lend the books they own, and demand that libraries implement the restrictive terms and conditions that publishers prefer.
Our opposition brief explains that “[p]ublishers do not have a right to limit libraries only to inefficient lending methods, in hopes that those inefficiencies will lead frustrated library patrons to buy their own copies.” The record in this case shows that publishers have suffered no economic harm as a result of our controlled digital lending–indeed, publishers have earned record profits in recent years. “[D]igital lending of physical books costs rightsholders no more or less than, for example, lending books via a bookmobile or interlibrary loan. In each case, the books the library lends are bought and paid for, ensuring that rightsholders receive all of the financial benefits to which they are entitled.”
The future of library lending is at stake in this lawsuit. We will keep fighting to prove that copyright does not stand in the way of a library’s right to do what libraries have always done: lend the books it owns to one patron at a time.
The Internet Archive has asked a federal judge to rule in our favor and end a radical lawsuit, filed by four major publishing companies, that aims to criminalize library lending.
The motion for summary judgment, filed Thursday in the U.S. District Court for the Southern District of New York by the Electronic Frontier Foundation (EFF) and Durie Tangri LLP,explains that our Controlled Digital Lending (CDL) program is a lawful fair use that preserves traditional library lending in the digital world.
The brief explains how the Internet Archive is advancing the purposes of copyright law by furthering public access to knowledge and facilitating the creation of new creative and scholarly works. The Internet Archive’s digital lending hasn’t cost the publishers one penny in revenues; in fact, concrete evidence shows that the Archive’s digital lending does not and will not harm the market for books.
Earlier today, we hosted a press conference with stakeholders in the lawsuit and the librarians and creators who will be affected by its outcome, including:
“Should we stop libraries from owning and lending books? No,” said Brewster Kahle, the Internet Archive’s founder and digital librarian. “We need libraries to be independent and strong, now more than ever, in a time of misinformation and challenges to democracy. That’s why we are defending the rights of libraries to serve our patrons where they are, online.”
Through CDL, the Internet Archive and other libraries make and lend out digital scans of print books in our 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. Nonetheless, publishers Hachette, HarperCollins, Wiley, and Penguin Random House sued the Archive in 2020, claiming incorrectly that CDL violates their copyrights.
“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,” said EFF Legal Director Corynne McSherry. “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.”
Authors and librarians speak out in support of the Internet Archive
“In the all-consuming tide of entropy, the Internet Archive brings some measure of order and permanence to knowledge,” said author Tom Scocca. “Out past the normal circulating lifespan of a piece of writing—or past the lifespan of entire publications—the Archive preserves and maintains it.”
“The library’s practice of controlled digital lending was a lifeline at the start of the pandemic and has become an essential service and a public good since,” said Benjamin Saracco, a research and digital services faculty librarian at an academic medical and hospital library in New Jersey. “If the publishers are successful in their pursuit to shut down the Internet Archive’s lending library and stop all libraries from practicing controlled digital lending, libraries of all varieties and the communities they serve will suffer.”
On July 8, 2022, Brewster Kahle, founder and digital librarian of the Internet Archive, spoke at a press conference about the copyright lawsuit brought against the Internet Archive by four commercial publishers. These are his remarks:
The Internet Archive is a non-profit library. And we do what libraries have always done.
What libraries do is we buy, preserve and lend books to one reader at a time. Why do we do it? Libraries are a pillar of our democracy. We are a great equalizer, providing access to information for all. We also have an age-old role as custodians of culture, preserving knowledge for future generations.
This is what the Internet Archive is doing along-side hundreds of other libraries. We have been lending scanned digital copies of print books for more than 10 years, and it has helped millions of digital learners.
With this lawsuit, the publishers are saying that in digital form, we cannot buy books, we cannot preserve books, and we cannot lend books.
This lawsuit is not just an attack on the Internet Archive—it is an attack on all libraries. The publishers want to criminalize libraries’ owning, lending and preserving books in digital form.
Should we stop libraries from owning and lending books? No. We need libraries to be independent and strong, now more than ever, in a time of misinformation and challenges to democracy.
That’s why we are defending the rights of libraries to serve our patrons where they are, online.
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.
On July 8, 2022, author and editor Tom Scocca spoke at a press conference about the copyright lawsuit brought against the Internet Archive by four commercial publishers. Tom is an editor at The Brick House, the proprietor of Indignity, and the former politics editor at Slate. He is the author of Beijing Welcomes You: Unveiling the Capital City of the Future. These are his remarks:
To be a writer in the 21st century is to be caught between two conflicting concerns: the fear that one’s work will be stolen, and the fear that one’s work will be lost. These are the individual and personal expressions of the larger facts of our living amid an unprecedented availability of information, and of the unprecedented unavailability of that same information. Our knowledge and our work are caught up in rapid, unpredictable cycles of creation, dissemination, and destruction; just as I was sitting down to write these thoughts, I discovered a year’s worth of my own writing had been suddenly blocked from being read on the internet by an expired certificate.
But I could still find it on the Internet Archive. In the all-consuming tide of entropy, the Internet Archive brings some measure of order and permanence to knowledge. Out past the normal circulating lifespan of a piece of writing—or past the lifespan of entire publications—the Archive preserves and maintains it. It’s surprisingly hard, logistically and conceptually, to remember what 2008 was like, let alone 1998, but miraculously, the evidence still exists. If it’s not quite like achieving immortality, it’s at least like no longer being buried in an unmarked mass grave.
This is the work that libraries have always done. Deep in the stacks, you can physically take a book off a shelf that no one else has checked out in 20 years. You could semi-physically, or semi-virtually, flip through a long-gone newspaper with a spin of a microfiche reel. One of my greatest thrills, when I became an author, was hearing from someone that their ordinary public library in some ordinary city had a copy of my book—a thrill quite different from the regular good news of knowing that some person had spent money to put a copy on their home bookshelf. In the library, my book could be read by anyone.
I was happy, then, to participate in the Open Library project, by putting my own work into an anthology to be published for digital lending. I understand—at a deep level, the level on which I wonder how I will pay the mortgage and what I will eat in my old age—how alarming the Open Library can sound to a writer. I feel that alarm: the sense that our already precariously remunerated work might be distributed for no money at all, that the greedy and impersonal culture of torrenting and piracy might be coming for us, too.
But practically, the idea is the idea of the library book. A single copy—bought and paid for—shared with one person at a time, and then returned to the shelf. The distribution may be virtual and seemingly unreal, but it behaves like a solid item. It behaves more like a solid item, in fact, than many provisionally available movies or texts on the consumer market, which act as your personal property for only as long as the underlying licensing agreement between the rights-holder and the seller lasts. That sort of dissolving culture isn’t a renewable revenue source, it’s a path to scarcity and amnesia.
On July 8, 2022, Benjamin Saracco, medical school librarian, spoke at a press conference about the copyright lawsuit brought against the Internet Archive by four commercial publishers. These are his remarks:
Hi everyone. My name is Benjamin Saracco, and I’m a research and digital services faculty librarian at an academic medical and hospital library in New Jersey. My library serves the doctors, nurses, residents, and other healthcare workers in the hospital, and also the students, faculty, and staff of the medical school.
The start of the COVID-19 pandemic was an extremely stressful time for me and my colleagues at the hospital library. In March 2020, the Governor of New Jersey signed an executive order that closed all libraries in the state. Even the physical books in my hospital’s library were unavailable to circulate for a period of time during the pandemic. I remember being flooded with requests from medical students, nurses, and doctors during that time, particularly front line healthcare workers that were seeking information about COVID-19 and COVID-19 clinical care information to address the high rates of hospitalization in our state.
Some of the most commonly checked out physical materials in our library are training materials for patient care. While our hospital library’s physical collections were closed due to the pandemic, I received multiple requests for at least two such materials: a Manual for Basic Life Support, known as the BLS Manual for Healthcare Providers and the Advanced Cardiovascular Life Support Provider Manual. These books are used to train front line healthcare workers to handle life-threatening emergencies, for example by giving CPR or using an automated external defibrillator in cases of cardiac arrest, as well as more advanced skills to treat patients in life-threatening circumstances, many of which arose during COVID-19 in our hospital. Since our physical collection was unavailable, I searched for ebook versions of these materials in our database and did not find any.
However, I was able to locate older editions of both books that were available for borrowing at the Internet Archive, and was able to direct the healthcare workers requesting these materials to the digitized books at the Internet Archive. I also provided a demonstration over Zoom to medical school faculty on how to use the Internet Archive’s lending library to search for materials that might be useful for the curriculum. As you can imagine, converting in person instruction for medical students training to be doctors such as working with human cadavers in a gross anatomy lab was a challenging endeavor to convert to a digital format.
From my educational and professional experiences as a librarian, especially during the start of the COVID-19 pandemic, I know the Internet Archive is an extremely valuable resource for the public. I have immense respect for the important work they are doing to ensure access to information through a digital medium.
As a professional librarian of over 12 years and an author and journal editor myself, I have been trained to always respect the rights of authors and publishers. In my view, the Internet Archive’s lending library is consistent with those rights. The library’s practice of controlled digital lending was a lifeline at the start of the pandemic and has become an essential service and a public good since. If the publishers are successful in their pursuit to shut down the Internet Archive’s lending library and stop all libraries from practicing controlled digital lending, libraries of all varieties and the communities they serve will suffer.
Albert Wan ran Bleak House Books, an independent bookstore in Hong Kong, for nearly five years, before closing it in late 2021. The changing political climate and crackdown on dissent within Hong Kong made life too uncertain for Wan, his wife and two children.
As they were preparing to move, Wan packed a box of books at risk of being purged by the government. He brought them on a plane back to the United States in January and donated them to the Internet Archive for preservation.
The collection includes books about the pro-democracy protests of 2019—some photography books; another was a limited edition book of essays by young journalists who covered the event. There was a book about the Tiananmen Square massacre and volumes about Hong Kong politics, culture and history—most written in Chinese.
“In Hong Kong, because the government is restricting and policing speech in a way that is even causing libraries to remove books from shelves, I thought that it would be good to digitize books about Hong Kong that might be in danger of disappearing entirely,” Wan said.
Hearing that Bleak House Books would be shutting its doors, the Internet Archive reached out and offered to digitize its remaining books. As it happens, Wan said his inventory was dwindling quickly. So, he gathered contributions from others, and along with some from his own collection, donated about thirty books and some periodicals to the Internet Archive for preservation and digitization. Wan said he was amazed at how flexible and open the Archive was in the process, assisting with shipping and scanning the materials at no cost to him. (See Hong Kong Community Collection.)
Now, Wan wants others to do the same.
“There are still titles out there that have never been digitized and might be on the radar for being purged or sort of hidden from public view,” Wan said. “The hope is that more people would contribute and donate those kinds of books to the Archive and have them digitized so that people still have access to them.”
Do you have books you’d like to donate to the Internet Archive? Learn more.
Wan said he likes how the Internet Archive operates using controlled digital lending (CDL) where the items can be borrowed one at time, not infringing on the rights of the authors, while providing broad public access.
Before his family moved to Hong Kong for his wife’s university teaching job, Wan was a civil rights and criminal defense attorney in private practice. Now, they are all getting settled in Rochester, New York, where Wan plans to open another bookshop.
Publisher of 11:11 Press says it sells—rather than licenses—books to libraries for online lending to reach a broad audience.
The goal of 11:11 Press is to have its books in every library in the world, according to its founder and publisher, Andrew Wilt.
“We are big supporters of libraries because they allow equal access to knowledge and preserve culture,” said Wilt, whose independent press based in Minneapolis sells its books at a discount to nonprofits. “From a publishing standpoint, our authors care about being read so we want to get our books to as many people as possible.”
The Internet Archive recently bought the entire catalog of books from 11:11 Press and made them available online for controlled digital lending to one person at a time.
“Honestly, I don’t know why anyone would not want to have their books in a library, especially the Internet Archive, which is more relevant now than it has been any other time,” Wilt said. “It used to be the library of the future. But in our era of remote learning and people working from home, the Internet Archive is the library of the present. You don’t have to go into an actual physical building. It’s available for anyone with an internet connection. It’s probably the most relevant lending institution at the moment.”
In business for four years, 11:11 Press publishes an eclectic mix of titles that Wilt describes as “disruptive literature.” Its authors push the boundaries. Some books have a very heavy, theoretical and academic focus while others are about everyday working people. There are books of poetry, short stories, novels, and hybrid work. The aim is to give exposure to underrepresented voices and offer an alternative from what is produced by mainstream publishers.
“We’re kind of this lighthouse trying to find those people who are actively looking for something that’s new and exciting,” said Wilt.
From the 11:11 Press Catalog
In one of the 11:11 Press “theory fiction” titles, Zer000 Excess, images are “glitching out” within the text, leading the reader to consider what meaning is being created. Jake Reber wrote the book using Microsoft PowerPoint 2007 – the only version of the software with identifiable software features known to produce these “glitches.” Authors like Reber intentionally use these embedded software tools incorrectly in order to get distortion. “Like the early punk bands who put fuzz in their music, we’re trying to add that distortion in the work,” said Wilt.
Human Tetris merges digital dating in an all-too-honest newspaper style of queer dating profiles. It was written as a collaboration between two different voices building a lattice of interlocking online identities by Vi Khi Nao and Ali Raz.
The publisher features “dangerous writing,” which uses fiction as the buffer to draw on personal experience. For authors in this genre, fiction is the lie that tells the truth. “We want to encourage writers to go to those uncharted territories of the self. What you find might be hard to look at, but if you pull back the layers, there’s something unique and beautiful there.” Wilt said.
Jinnwoo (Ben Webb) is a writer, musician, visual artist, and author of the book Little Hollywood published by 11:11 Press. It consists of B-grade movie scripts with paper doll cut outs. The idea is to engage the reader by having them cut out the dolls and use the scripts. “Going to those dark places with honesty encourages the reader to be more mindful, more present, which leads to more empathy,” Wilt said.
In its next catalog, 11:11 Press will be coming out with a 520-page Illustrated Old Testament and corresponding painting. This 9-by-12-inch book, which will sell for $150, is too religious for some and too secular for others, making it a perfect product for a small press, Wilt said. Another upcoming book will be a compilation of short stories by the late Peter Christopher who helped start the dangerous writing movement.
As a small press, Wilt said the focus isn’t to write with marketing in mind but rather for authors to write the stories only they can tell. The hope is for 11:11 Press to create something greater to help benefit society and get people to think in a different way. “Reading authors who courageously face their lives, their past, their future, encourages us, the readers, to do the same,” he said.
Wilt said he anticipates other independent publishers will follow suit in selling their works to the Internet Archive. “Small presses drive innovation. This is where experimentation occurs,” he said. “Our top priority is sharing knowledge.”
From the hundreds of libraries using Controlled Digital Lending (CDL) to meet the needs of their communities to the many working groups and vendors investigating its potential, it’s clear that this innovative library practice is on the rise.
Want to learn more about what’s going on across the community? Join us for a public webinar at 11am PT on March 10 to hear from active projects, including:
Controlled Digital Lending Implementers group;
NISO’s grant from The Mellon Foundation to support the development of a consensus standards framework for implementing CDL;
Boston Library Consortium’s efforts around CDL for interlibrary loan;
CDL Co-Op (ILL & resource sharing);
Internet Archive, with an update on the publisher’s lawsuit against CDL & libraries;
Presentations will be followed by a facilitated Q&A. Whether you are new to Controlled Digital Lending or have already implemented it in your library, this session will give everyone an update on where the community is today & where it’s going.
Community Update: Controlled Digital Lending March 10 @ 11am PT / 2pm ET Watch the session recording now
Last fall, we invited our patrons to share how you use the Internet Archive. The response was overwhelming, and gave us exactly the kinds of testimonials and messages of support we were hoping to gather.
As we worked through the responses, we were struck by the number of patrons from all over the world who use our collection. Here now, we’d like to share some of the powerful stories we received from our international users.
Editorial note: Statements have been edited for clarity.
Lisa M., Educator, England – “Internet Archive helped me help a student! I have students in one class that attend from around the globe. One student was unable to find the required texts and our university did not have digital copies that could be lent. If she were to order the book – not carried in any local stores – it could take up to 3 months for them to arrive, long after the course was over!”
Claudia G., Researcher, Romania – “Even before the pandemic, depending on the topic of my essay and thesis, it was difficult to find books on certain topics in local libraries or bookstores…Access to knowledge shouldn’t be for the rich and privileged.”
Ana S., Communications assistant, Brazil – “I borrowed a book about Stephen Sondheim. Sondheim’s story and body of work is definitely an inspiration for me as someone always trying to learn ways to exercise my creativity. I just wanted to browse one section, and it was really amazing. I’m really thankful you had it available, for anyone in the world, and the borrowing process was really easy to follow through.”
Mike D., Librarian, New Zealand – “I’m a Digital Librarian in a public library in the small town of Hokitika, New Zealand, whose job is making local history more accessible to the community – many of the New Zealand history works in our public library collection are rare or reference-only. It turns out many works of New Zealand history have been digitised by the Internet Archive from US collections”
Callum H., Yard operative, Scotland – “As a non-academic with interests in literature, history, and philosophy, the IA gives me access to books I can’t otherwise afford or access.”
Yuri L., Educator, Brazil – “I spent months of 2020 bed-ridden, and was able to view items from your digitized collection. I would not have been able to go to any physical place for my books, and the titles I was looking for were sometimes available only on the Internet Archive. There are no other means for me, in my part of South America, to have access to limited-circulation ancient newspapers of other continents without digitizing and digital libraries. Without the Internet Archive and other libraries like it, I would have no alternatives.”
Simay K., Researcher, Turkey – “Living in a developing country with so many political and economic turmoils, I believe that the Internet Archive provides a huge service and a unique platform for dissolving the injustice and inequality of [access] to knowledge between disadvantaged countries and classes.”
Lydia S., Student, Canada – “I’ve used materials from the Internet Archive many times throughout my time as an undergrad studying history…There are many primary and secondary sources on the IA that I was unable to find anywhere else online or in physical copies through my university’s library. Many of the books I’ve accessed through the IA have been out of print for many years, so it’s incredibly helpful to have [access] to titles that would otherwise be nearly impossible to track down.“
Kim C., Librarian, Canada – “I use the materials on the Internet Archive often on a personal and a professional level. I have been able to help patrons access books that we have not been able to procure for them in other ways, for reference material for every school level from primary to masters degree research. I have used the collection on many occasions to access local history or genealogical material unavailable elsewhere.”
Richard G., Poet, Canada – Richard used books within the Internet Archive’s library, “to reference other author’s prose and poetry for quotations and references.”
Chloe J., Student, Canada – “It has given me access to material that I would not otherwise have access to.”
Shehroze A., Educator, Pakistan – “I am surprised that books pertaining to learning the Urdu language are available on archive.org, and those which were used for preparation in the civil services. These books are just not available in the country anymore and are immeasurably useful as far as the history of the colonized area is concerned. These are not published anymore, and finding a copy is exceedingly rare. This is why archive.org is important and we should endorse and support it.”
Stephen C., Graduate student, Canada – “The Internet Archive has been an invaluable resource for a research project I am involved in. We have been able to access numerous historical travel narratives that are essential for our project. We have been able to view books that we could not access in archives due to travel restrictions and lending policies during the pandemic.”
Simon H., Printing press operator, Switzerland – “I often find interest in old and niche books, sometimes from parts of the world far away from me. In those cases, I have two options for accessing such a book: 1. I order a physical copy of the work and let it ship to my home. That is incredibly expensive, harmful to the environment and occasionally damaging to an old and fragile book, conserved for such a long time with care and passion. 2. I’m lucky enough to find a digital reproduction of a work, which can be accessed for free and “shipped” eco-friendly through wires and antennas. The difference between those two possibilities is so pronounced, that the latter almost seems like an utopian fairy tale. But it is not! It is 21st century’s technology at work.”