The Fight Continues

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Today’s lower court decision in Hachette v. Internet Archive is a blow to all libraries and the communities we serve. This decision impacts libraries across the US who rely on controlled digital lending to connect their patrons with books online. It hurts authors by saying that unfair licensing models are the only way their books can be read online. And it holds back access to information in the digital age, harming all readers, everywhere.

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. 

We will continue our work as a library. This case does not challenge many of the services we provide with digitized books including interlibrary loan, citation linking, access for the print-disabled, text and data mining, purchasing ebooks, and ongoing donation and preservation of books.

Statement from Internet Archive founder, Brewster Kahle:
“Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society—owning, preserving, and lending books.

This ruling is a blow for libraries, readers, and authors and we plan to appeal it.”

Take Action!

Stand up for libraries ✊
Stand up for the digital rights of all libraries! Join the Battle for Libraries: https://www.battleforlibraries.com/ 

Support the Internet Archive 📚 
Support the Internet Archive to continue fighting for libraries in court!

Stay connected 🔗
Sign up for the Empowering Libraries newsletter for ongoing updates about the lawsuit and our library.

Stand with Internet Archive as we fight for the digital rights of all libraries

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We stood up for the digital rights of all libraries today in court! The Southern District of New York heard oral argument in Hachette v. Internet Archive, the lawsuit against our library and the longstanding library practice of controlled digital lending, brought by 4 of the world’s largest publishers.

We fought hard for libraries today, and we’re proud of how well we were able to represent the value of controlled digital lending to the communities we serve. 

Take action!

While we wait for the judge’s decision, here’s how you can show your support:

Join the Battle for Libraries ✊
The internet advocacy group Fight for the Future has launched the Battle for Libraries, an online rally in support of the Internet Archive and digital lending. Visit the action hub to engage with other supporters & share messages with your followers across social media to spread awareness about our fight. Get started now!

Read a book! 📕
Check out a book from Open Library and read it online using the library practice of controlled digital lending.

Stay connected 🔗
Sign up for the Empowering Libraries newsletter for the latest updates about the lawsuit and our library.

Internet Archive Press Conference: March 20, 2023

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Internet Archive hosted a press conference before oral argument in Hachette v. Internet Archive, the lawsuit against our library.


Speakers:
Link to statement & transcript.

Press conference statement: Brewster Kahle, Internet Archive

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Brewster Kahle is the founder and digital librarian of the Internet Archive. Brewster spoke at the press conference hosted by Internet Archive ahead of oral argument in Hachette v. Internet Archive.

Statement

The Internet is failing us. The Internet Archive has tried, along with hundreds of other libraries, to do something about it. 

A ruling in this case ironically can help all libraries, or it can hurt.  

The Internet Archive is a library I founded 26 years ago. This library has brought hundreds of years of books to the wikipedia generation, and now 4 massive publishers are suing to stop us.

As the world now looks to their screens for answers, what they find is often not good.  People are struggling to figure out what is true and it is getting harder.  

Digital learners need access to a library of books, a library at least as deep as the libraries we older people had the privilege to grow up with.  

The Internet Archive has worked with hundreds of libraries for decades to provide such a library of books.  A library where each of those books can be read by one reader at a time.  This is what libraries have always done. 

We also work with libraries that are under threat.  We work with many libraries that have closed their doors completely– libraries with unique collections: Claremont School of Theology, Marygrove College of Detroit, cooking school of Johnson & Wales Denver, Concordia College of Bronxville NY, Drug Policy Alliance’s library of NYC, the Evangelical Seminary of Pennsylvania. I have looked these librarians in the eye and told them that we are there for them. 

They entrust their books to us, as a peer library, to carry forward their mission. Most of the books are not available from the publishers in digital form, and never will be.  And as we have seen, students, researchers and the print-disabled continue to use these books for quotations and fact checking.    And I think we can all agree we need to be able to do fact checking.

Here’s what’s at stake in this case: hundreds of libraries contributed millions of books to the Internet Archive for preservation in addition to those books we have purchased. Thousands of donors provided the funds to digitize them.   

The publishers are now demanding that those millions of digitized books, not only be made inaccessible, but be destroyed.

This is horrendous.   Let me say it again– the publishers are demanding that millions of digitized books be destroyed.

And if they succeed in destroying our books or even making many of them inaccessible, there will be a chilling effect on the hundreds of other libraries that lend digitized books as we do.

This could be the burning of the Library of Alexandria moment– millions of books from our community’s libraries – gone.   

The dream of the Internet was to democratize access to knowledge, but if the big publishers have their way, excessive corporate control will be the nightmare of the Internet.

That is what is at stake.   Will libraries even own and preserve collections that are digital?  Will libraries serve our patrons with books as we have done for millennia?   

A positive ruling that affirms every library’s right to lend the books they own, would build a better Internet and a better society.

Thank you.

Press conference statement: Lila Bailey, Internet Archive

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Lila Bailey is the senior policy counsel at Internet Archive. Lila spoke at the press conference hosted by Internet Archive ahead of oral argument in Hachette v. Internet Archive.

Statement

I’m Lila Bailey, Senior Policy Counsel for the Internet Archive. Today, the court will hear arguments about whether Copyright Law affirms the rights of libraries to lend the books they own to one reader at a time.

The benefits of libraries to our modern world cannot be overstated. Libraries are an essential component of our democratic and free society. But the rise of social media, and now AI, have resulted in an immediate threat to the public’s pursuit of the truth. 

In a vigorous pursuit of truth, the library is our greatest ally.  

The Internet Archive’s digital lending program serves this essential purpose. The very purpose of the copyright system: to encourage the intellectual enrichment of the public. 

Controlled digital lending represents the latest in a long history of innovations developed by libraries to serve the public’s need for information. In the past, publishers stood against microfilm and photocopiers, crying harm. They said they would be harmed by interlibrary loan. They lobbied for decades against libraries being allowed to provide access for the blind and print disabled. They were wrong. It took years, but eventually the law affirmed each of these things, and the public benefitted.

With this lawsuit, publishers have repeated those same claims of massive harm from controlled digital lending. 

But this case has revealed one thing very clearly, after both sides have spent nearly three years, and millions of dollars looking at the actual market and usage data. 

There has been no harm. These publishers have not shown the loss of even one dollar.

Even during COVID, when every physical library was closed and the Internet Archive stepped up to provide an Emergency Library.

Contrary to the publishers’ dire predictions there was simply no effect on their market. Not one dollar of harm.

When asked under oath, their own executives admit this. For example, Alison Lazarus, EVP and Director of Group Sales for Hachette, admitted that their theory of harm is only [quote] “speculative.”  Another executive, Skip Dye, SVP of Library Sales and Digital Strategy at Penguin Random House, candidly admitted that when it comes to market harm, quote: “I don’t have any evidence.”

Another agreed, stating: “There’s no factual analysis. It’s just one inference one could make.”  That was Chantal Restivo-Alessi, Chief Digital Officer of HarperCollins.

Tellingly, the publishers instructed their own 950 dollar per hour expert not to even try to measure economic harm. They didn’t give him any data to measure. When asked under oath whether any potential sales were lost, he responded: “I don’t have empirical evidence of that.”

On the other hand, when we invited economists from Northeastern University and the University of Copenhagen to look at the sales and library lending data produced in this case, they came to a singular conclusion: The Internet Archive’s digital lending had no measurable effect on the market whatsoever. 

Never in the history of the United States have libraries needed to obtain special permission or to pay license fees to lend the books they already own. Sure, publishers would profit from the ability to demand such fees, but the law does not give them that right.

We look forward to the court reaffirming the essential role of library lending, now in our digital world.

Thank you.

Press conference statement: Lawrence Lessig, Harvard Law

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Lawrence Lessig is a professor of law at Harvard Law. Lawrence spoke at the press conference hosted by Internet Archive ahead of oral argument in Hachette v. Internet Archive.

Statement

Also available at Lessig for the Internet Archive on Medium.

We should all recognize — and celebrate—the importance of commercial publishing, for authors and creators everywhere. Commercial publishing creates the income that authors depend upon to have the freedom to create great new works. Without commercial publishing, much of the greatest that will be won’t be written.

But we must also recognize that culture needs more than commercial publishing. If the business model of commercial publishing controlled our access to our past, then much of who we were, and much of how we learned to be better, would simply disappear.

Think about the extraordinary platform that is Netflix. For a small price each month, subscribers have access to thousands of movies and television shows, far more than at any point in human history. The revenue subscribers provide in turn lets Netflix invest in new creative work. No one who knew television from the 1970s could believe that the quality of television has not improved dramatically over the last 50 years.

Yet Netflix’ archive is not endless. And each year, the site culls titles from its collection and removes them from its library. Netflix does this for many reasons — for example, the content could be licensed from third parties, and the term of that license has expired, or the site may see that demand for the title is meager, so bearing the costs of carrying it no longer makes sense. Regardless of the reason, the decision is an economic one for Netflix — Netflix makes available only those titles that it continues to make economic sense to make available. Such is the business model of a commercial publisher.

But culture needs a different business model. We need access to our past, not just the part of our past that continues to be commercially viable. We need libraries that assure we can see everything our parents or grandparents saw, so we can understand why they were as they were, and how they got better. Great libraries preserve access to as much as they physically can — not based on which titles continue to earn revenue. The past is just one more competitor for a commercial publisher; but for a library, the past is a gift that is to be nurtured and protected, regardless of its commercial value.

We are at a critical moment in the history of culture. The lawsuit that the Internet Archive faces will determine whether the business model of culture is the commercial model alone, or whether there will continue to be a place for libraries, and therefore, continue to be a practice of assuring as much access to our past as is possible. The particular fight in this lawsuit is important; the general fight is critical: Is the past that we have access to just the past that continues to pay? Or is the past we can have reliable access to the past that libraries strive to make available — not for profit, but for the love of culture and for the truth that that access to all of culture continues to assure.

Press conference statement: Heather Joseph, SPARC

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Heather Joseph is the executive director of SPARC. She spoke at the press conference hosted by Internet Archive ahead of oral argument in Hachette v. Internet Archive.

Statement

Access to knowledge is a fundamental human right. 

We depend on being able to freely share knowledge each and every day. It’s foundational to how we navigate the world – from how we learn to how we work, to how we share our culture and understand our collective history.  It’s also the lifeblood of how we advance discovery, and attack the biggest challenges that we face as a society.  From cancer breakthroughs to climate justice, we rely on being able to access, build on and benefit from the knowledge generated by those around us. 

We take for granted that knowledge is just – there, and that ANYONE can get it when and if they need it.  But the reality is that too often, this simply isn’t the case.    Especially in the world of scientific research, knowledge is treated as a commodity, and often carries a price tag that makes it unaffordable to all but the wealthiest individuals and institutions.   

This is never more evident than in times of crises. From the avian flu to the global COVID 19 pandemic, we’ve seen the same pattern play out over and over again. When a health crisis looms, one of the very first thing that happens is that scientists, the public and policymakers have to plead with publishers to lower their paywalls and make sure that those who desperately need access to knowledge can get it.  Whether it’s access to develop treatments and cures, or to make sure students can continue to learn, knowledge shouldn’t be kept locked behind glass that can only be broken in the event of an emergency.  It should be readily available to all. 

Libraries play a critical role in making this happen.  They are designed to empower everyone – regardless of who you are, where you live, or your economic or political status – to access and use knowledge. Whether you walk into a physical library like the New York Public Library, or log into a digital one like the Internet Archive, you don’t need a PhD or a billion-dollar bank account to access the knowledge they hold. 

We depend on libraries to do the crucial things they have done for centuries.  Libraries collect. They preserve.  And libraries lend.  They collect materials to ensure access to the broadest range of ideas and facts.  They preserve these materials for the long haul, because access to knowledge should not be ephemeral. Stable, consistent, long-term access is how we promote continuity and ultimately understand truth.  Lending – one copy of a physical or digital object to one person at time is the bedrock process that libraries use to ensure free, fair and equitable knowledge sharing.   

Libraries like the Internet Archive exist to ensure the universal sharing of knowledge. Sharing knowledge is a fundamental human right. Nothing could be more important to protect than that. 

Press conference statement: Catherine Stihler, Creative Commons

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Catherine Stihler is the chief executive officer of Creative Commons. Catherine spoke at the press conference hosted by Internet Archive ahead of oral argument in Hachette v. Internet Archive.

Statement

My name is Catherine Stihler, and I’m the CEO of Creative Commons.

As a nonprofit dedicated to supporting the sharing and reuse of creativity and knowledge, we strongly support the Internet Archive in its defense of Controlled Digital Lending. Free, equitable, and open access to all knowledge stimulates creativity, is essential for research and learning, and constitutes a bedrock principle of free and democratic societies.

The Internet Archive is leading the fight for establishing permanent access to historical collections that exist in digital format. With Controlled Digital Lending, libraries like the Internet Archive can lend one copy of digitized material from their collection to one borrower for a limited time, just like they would a physical book.

While publishers argue that CDL decreases their profits, studies show that in fact library digitization increases sales of physical editions by about 34% and increases the likelihood of any sale by 92%, particularly for less popular or out-of-print works. At Creative Commons, we believe copyright should encourage Controlled Digital Lending and ensure that legal mechanisms are in place to support this practice that benefits all.

This isn’t a position that we just came to on our own; instead, it came from working hand in hand with cultural and knowledge institutions across the world. Like Communia’s policy recommendations state: “libraries should be enabled to fulfill their mission in the digital environment.” As libraries modernize their services, we need to protect the legal frameworks that support their digital lending practices.

Permitting and protecting Controlled Digital Lending is a key way to help ensure copyright is fit for the modern age. Guided by our strong belief in better sharing, CC will continue to support the Internet Archive’s crucial efforts to ensure the public can access knowledge and culture on a global level.

Press conference statement: John Chrastka, EveryLibrary

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John Chrastka is the executive director of EveryLibrary. John spoke at the press conference hosted by Internet Archive ahead of oral argument in Hachette v. Internet Archive.

Statement

My organization, the EveryLibrary Institute, is a public policy and tax policy research organization focusing on issues affecting the future of libraries in the United States and abroad.

Alongside our colleagues at ReadersFirst, we joined an Amicus brief written by the Library Futures Institute, to ask the court to uphold a library digital loaning practice known as Controlled Digital Lending  – or “CDL”. CDL uses technology to enable a library to acquire, preserve, and provide access to digital versions books for library patrons. 

Simply put, CDL is a different way of utilizing the centuries-old method by which libraries have loaned the books on their shelves for the public to read.

Controlled Digital Lending – as is commonly used in libraries like the Internet Archive – does not replace ebook licenses, and is a reasonable practice for the current moment. For more than a century, Copyright law has allowed libraries to legally lend books and other materials they own. This practice of library lending is essential in ensuring public access to information, particularly books –  and has numerous social benefits. With the growth of digital delivery, libraries have adapted by lending materials using new technologies and formats. 

However, this lawsuit seeks to outlaw digital library lending unless they dictate how, where, to whom, and at what price it occurs. This would significantly alter how libraries work and their relationships with their patrons and collections in the digital age. 

I’d like to take a moment to remind the court about the context of the “Emergency Lending Library” and to ask it to consider the context under which the Internet Archive, as a library, was responding to need. From the launch of the Emergency Lending Library on March 24, 2020 to June 16, 2020, essentially every school district in the United States was closed to in-person learning. The Philadelphia school district was completely shut down with no substantial instruction happening. The school district of Washington, DC shifted part of their instructions to Television. According to Georgetown University’s analysis of MAP tests, Chicago Public School students lost the equivalent of 21 weeks of learning in the year following these shutdowns. 

The “Emergency Lending Library” from the Internet Archive provided a unique, important, and necessary service to Americans in this context. It was an exemplar moment for libraries which mitigated the harm of these shutdowns for students and their families.

The plaintiffs’ narrow interpretation of the Copyright Act ignores the broader common law doctrine, policy objectives, and history of copyright. Both Congress and the Supreme Court have historically balanced the interests of copyright holders and owners. 

The court should not rewrite more than a century of copyright law about libraries. Doing so will make it nearly impossible for libraries to fulfill their mission – especially in times of grave need and crisis – in the digital environment.

Press conference statement: Ashton Applewhite, author

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Ashton Applewhite is one of more than 1,000 authors who spoke out in opposition to the publishers’ lawsuit. Ashton spoke at the press conference hosted by Internet Archive ahead of oral argument in Hachette v. Internet Archive.

Statement

My name is Ashton Applewhite, and I’m recording this in New York City on March 16, 2023. For over 40 years I have supported myself and my family by writing books for Random House, Harper Collins, Macmillan and other major publishing houses.

These publishers have served me well, but I am completely opposed to their lawsuit against the Internet Archive.

It will have a chilling effect on the efforts of all libraries to adapt as print culture migrates online, and it will also devastate the Internet Archive, which, as we hurtle into this digital unknown, is the single most important repository of human knowledge. No other organization is preserving and providing online access at this scale.

The Wayback Machine alone has archived 800 billion pages, millions of books, tens of thousands of hours of TV and radio news. And on and on. Humanity’s collective history, digitized, thank Heavens!

The Internet Archive exists. We need to be able to say that 100 years from now.