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.

It’s fair use week in the United States, and here at the Internet Archive, we join all those in the library community and beyond who celebrate the role fair use plays in enabling access to knowledge. 

Fair use is a tremendously important part of US copyright law. From effectuating First Amendment rights to fostering innovation, the Supreme Court has described its “basic purpose” as “providing a context-based check that can help to keep a copyright monopoly within its lawful bounds.” And over the years, fair use has rightly evolved to ensure it can continue to play its role in changing times. 

But fair use is not without its challenges. Professor Larry Lessig once famously quipped that “fair use in America simply means the right to hire a lawyer.” And given the associated expense, this can have an asymmetric effect on fair use. The book publishing industry, for example, is dominated by multi-billion-dollar firms; their economic power is so concentrated that a federal court recently enjoined a further attempt at consolidation. Meanwhile, although libraries collectively represent a substantial portion of book purchasers, their economic power is dispersed among many thousands of public, research, academic, and other institutions. Thus, while some may be willing to “roll the dice” on fair use, the costs and risks lead many to underuse this important user’s right.

As the defendant in a years-long fair use case of our own—recently scheduled for oral argument on March 20th—we are all too familiar with this aspect of the law. As our case demonstrates, the economic challenges of fair use are not only about legal fees; economics are embedded in the doctrine. In some ways, this is a good thing. For example, as we explained in our brief, fair use has always been concerned with protecting non-profit and educational uses of copyrighted works. When considering whether a particular use is fair, the first question is ordinarily whether it’s “noncommercial.” With respect to our own book collections, this is straightforward: the books are lawfully acquired, digitized at our own expense, and lent to one reader at a time—without any cost to them—for personal, research, or scholarly use. And while noncommerciality does, of course, have to be balanced against certain economic interests of the publishers as part of the fair use analysis, that’s precisely what the owned-to-loan ratio and other strictures of controlled digital lending work to do. 

For all its challenges, fair use continues to provide important rights and safeguards to libraries. Among other things, it allows libraries to utilize new technologies and respond to new challenges without waiting for the legislature to pass new laws. In fact, this is exactly what the legislature intended it to do. Fair use means libraries can develop innovative services like our work to support Wikipedia citations, respond to new challenges like the COVID lockdowns, and otherwise continue to serve patrons as the world evolves. And it means libraries, like the Internet Archive and many others, can lend their books to one reader at a time, as they have always done.

On February 23, 2023, the United States Supreme Court will hear oral arguments in Gonzalez v. Google. The case is, in a narrow sense, about whether certain algorithmic recommendations of a very large online platform can give rise to civil liability. But the Court’s ruling could fundamentally “reshape the internet”, redefining the circumstances in which a wide variety of websites and online services–including libraries–could be liable for the actions of their users. Internet Archive was proud to join the American Library Association, the Association of Research Libraries, the Freedom to Read Foundation, and the Electronic Frontier Foundation, in a “friend of the Court” brief urging robust Section 230 protections for libraries and others.

As the Association of Research Libraries has previously noted, “libraries are included in” the protections of Section 230, and “[a]ny changes to the liability protections of 230 may endanger the ability of libraries to fulfill their public service missions.” Following from this, our brief highlights a number of important library projects and services “designed to share and build knowledge” which are currently protected by Section 230; these could be threatened by sweeping changes to the law. In fact, providing a space for the maintenance and development of these kinds of projects is exactly what the framers of Section 230 set out to do: it was enacted “to promote the continued development of the Internet” and so that it could continue to provide “a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”

As the brief explains, substantial changes to Section 230 could frustrate these purposes by making it harder for libraries to use the internet to broaden and deepen the public’s access to knowledge (among other things). And while it is impossible to know exactly how Section 230 might be changed by the Court, and how those changes could impact the behavior of libraries and others who rely on Section 230 today, the brief highlights a number of concerning scenarios that we hope the Court will consider. These kinds of concerns have been raised by many, including Professor Eric Goldman, who has explained how changes to the law occasioned by this case could make it too costly or burdensome for many online services to operate the way they do today; this could result in an internet dominated by “a small number of voices” promoted by the largest corporations and hidden behind paywalls. 

At the Internet Archive, despite the challenges, we continue to believe in the power of the internet to democratize and expand access to knowledge. As EFF said when it filed the brief, “[a]s the internet has grown, its problems have grown, too,” but we can “address those problems without weakening a law” that has provided meaningful protection to everyone, including libraries. As courts and legislatures consider changes to this existing legal structure, we hope they keep in mind the public’s interest, so we can work towards an internet that preserves public interest spaces and is shaped by public interest values.