Internet Archive Seeks Summary Judgment in Federal Lawsuit Filed By Publishing Companies

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.”

20 thoughts on “Internet Archive Seeks Summary Judgment in Federal Lawsuit Filed By Publishing Companies

  1. Richard Burt

    Thank for filing this lawsuit. I use all the time. I hope you win. There is an obvious and crucial difference between lending a book at no cost and pirating the book for profit. You are only lending books, some for limited amounts of time. You have created an incredible library online. Thank you again.

  2. jordan modell

    I agree with the arguments put forth by the Internet Archive. The publishers want to not only restrict the public rightful access to books but via precedent curtail all our freedoms

  3. Kitz Cleary

    Witness the population of ill-informed and misinformed population of US citizens, MORE reading is needed not less.
    These publishers seek to penalize libraries for lending books broadly and generously to cultivate a culture of reading. Publishers seek to multiply their profits because they can lock access to books that have been purchased by libraries. Should publishers be permitted to profit by contributing to the intellectual deterioration of US citizens? Should they be allowed to erase access to books just because they can?

  4. آهنگ جدید

    The outcome of this case is important. Failure in this case can cause the future of librarianship to face copyright problems. Libraries have their own policy and I don’t think the publisher’s rights were violated.

  5. Guilherme Monteiro Jr.

    It is a really serious thing, actually. But it also involves the whole political, economical, ideological, scientific and technological affairs as well. Copyright only exists to protect capitalists, neoliberals, rightists and popular media to do whatever they want and still being protected by the law and courts, Big Tech proves it very well. It is really sad actually. It is harsh how much the courts are more focused on attacking and censoring libraries, The Internet Archive and archives instead of doing something useful like striking against the Big Tech and the things Big Tech actually do and most people actually now. Capitalism/neoliberalism is not about freedom and democracy but censorhsip and totalitarianism, and what is happening to The Internet Archive is an example. It is funny how the courts are more worried into protect companies like Marvel, DC, Santa Monica Studio, Capcom, Atlus and such to make really offensive videogames against religion/spirituality/esoteric and on censoring archives and libraries, instead of countering Big Tech totalitarianism, scientific fundamentalism, alt-right, far-right, far-centre, russophobia, sinophobia, genocidal anticommunism, genocidal antileftism, misotheism, antitheism and such. I dunno if my comment will be approved here, but it is necessary to vent sometimes. And it is really how much the authorites nowadays are, not just courts but the authorities as a whole. And I got here for ask you guys to expand the Archive for outside USA and create several other data centers over the world, since it is necessary nowadays. And even get support of the left, radical left and revolutionary left for counter it, left I mean left like FRT/PCTB and CPWW as well.

  6. Kat

    “… Concrete evidence shows that the Archive’s digital lending does not and will not harm the market for books.” Definitely. Look at the Better World Books sales directly resulting from visits to the Internet Archive. At this very moment, our family has a shipment expected any day of NEW and used books we purchased through the IA-BWB partnership only after learning about those titles here first. Our local public lending library and the Internet Archive guide us to most of our book purchases each month.

  7. Noah

    Well… I don’t have much faith in the world and the courts to make the right decisions anymore… it’s been a good run. I hope that for once in my life I’ll be proven wrong but the way the world’s been going lately I just can’t put my faith into that anymore.

  8. Swim

    This is disappointing to read. Good luck Morality and ethics appear to be fleeting qualities. Heads up high and middle finger to them all!

    1. Candice Cane

      I agree with you, Swim. It’s sad that some people (typically large corporations that *just can’t have enough money*) just want to watch the world burn and ruin the fun for everybody.

      I hope wins. I’ve donated to both them and the EFF and I recommend others do the same. Help the little guys out that actually want to *progress* our society and not hold it back. All of this greedy corporate copyright nonsense isn’t helping anybody. I hope this trial leads more lawmakers to reanalyze things like the DMCA, realize how broken it is and change it for the better.

  9. Ken Fisher

    I cannot work out why these publishers are going *against* IA rather than partnering with it to promote the love of books. Am I missing something?

    IA is the greatest advertising tool these publishers have ever had. How many people have browsed a book on IA and, based on what they saw, decided to purchase a copy for their personal library?

    People do not buy books they have never heard of and IA is an unsurpassable tool for finding and sampling books that would otherwise rarely see the light of day. On the other end of the scale, the lifecycle of newly-printed books is often measured in mere weeks and IA is offering publishers a way to prolong it free of charge.

    The industry is concerned about piracy; I get that. But IA does not offer copies of books to keep, only books to *borrow* for a limited time.

    I cannot imagine anything worse for the publishing industry than continuing to pursue this lawsuit. Did they not learn anything from how the music industry dealt with piracy? Prosecuting grandmothers, college kids, and other people with little money did not earn it any friends. Many bands were hesitant about signing with a major label after they saw how the industry treated its customers (and potential customers).

    I hope IA prevails in this case, if only to show the world there is nothing for companies to gain by treating people poorly when they have not done anything wrong.

  10. David Sewell

    Re the comment “Copyright only exists to protect capitalists, neoliberals, rightists and popular media to do whatever they want”: that is a pretty ahistorical view of the origins and purpose of copyright. In fact, the prime movers of the original copyright legislation in the U.S. were authors, not publishers. And there are a bunch of self-publishing authors out there making a living from, or supplementing income from, their writing who have a vested interest in legal protection against piracy. So we shouldn’t throw the “baby” of authors out with the “bathwater” of big-money publishers.

  11. Pam Eason

    I am so thankful for Internet Archive. I have used it for years to access public domain books, and, more recently to borrow books not in the public domain – some of which I have bought. We live in a small community with an extremely limited library. Internet Archive is the only way I have access to a wide variety of books. I am praying the court will see the huge benefit IA provides in the lives of people like me.

  12. Azael Moreno

    Buenos dias, los saludo desde Ecuador. Nací en 1981, antes de que el internet fuera lo que es hoy: OMNIPRESENTE es una de las razones por las que DEBE existir el internet.
    Sigan la lucha contra la ignorancia y la codicia, muchos dependen de voces como las suyas para que pueda seguir existiendo la libertad de expresión.

  13. Michael A Lee

    I am so thankful for Internet Archive. I have used it for years to access public domain books, and, more recently to borrow books not in the public domain – some of which I have bought. We live in a small community with good tech information at hand thank you

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