Tag Archives: controlled digital lending

Friend of the Court Briefs Filed in Internet Archive’s Appeal

Last week saw a massive outpouring of support for the Internet Archive and our legal positions from prominent library and nonprofit organizations, as well as hundreds of librarians and academics, who filed amicus (“friend of the court”) briefs in the Hachette v. Internet Archive Second Circuit appeal. Read on to learn why they believe our appeal should succeed.

American Library Association and Association of Research Libraries. This brief supports the Internet Archive’s position that our use of Controlled Digital Lending is a nonprofit educational use rather than a “commercial” one, and urges the Court to consider the broader impact its decision will have on a host of everyday library practices that rely on fair use. “Libraries rely on fair use at every step in a typical digital preservation workflow, from cataloging to access.” Read the full brief here.

Authors Alliance. This brief voices the strong support of authors for the Internet Archive and controlled digital lending. “Authors want and need libraries to purchase their books, but the copyright system has never required libraries to pay for those books again and again in order to provide readers with access in formats relevant to them in light of evolving technology.” Read the full brief here.

Center for Democracy & Technology, Library Freedom Project, and Public Knowledge. This brief focuses on the significant privacy issues at play in this case. “Readers should not have to choose to either forfeit their privacy or forgo digital access to information; nor should libraries be forced to impose this choice on readers. CDL provides an ecosystem where all people, including those with mobility limitations and print disabilities, can pursue knowledge in a privacy-protective manner.” Read the full brief here.

Copia Institute. This brief raises the important First Amendment considerations embodied in fair use, arguing that the district court decision rejecting Internet Archive’s fair use defense put copyright law in conflict with the Constitution. “Copyright law should want to promote access to works, because it does nothing to promote progress if the law incentives the creation of works that no one can actually enjoy. In this case, enabling the books that were already lawfully readable to be read is what copyright law should instead be glad for the Internet Archive to do.” Read the full brief here.

Copyright Scholars. In this brief, 11 prominent copyright scholars argue forcefully for the Second Circuit to overturn the district court’s decision. “By eliminating the ability of libraries to use CDL as a means of ensuring long-term affordable digital access to their collections, publishers threaten the core functions of the library—acquiring, preserving, and sharing information. Avoiding those public harms urges a finding of fair use.” Read the full brief here.

eBook Study Group, Library Futures Project, EveryLibrary Institute, ReadersFirst, SPARC, ASERL, BLC, PALCI, Urban Libraries Unite and 218 individual librarians. This brief explains the history and development of CDL, how deeply embedded the practice is today, and urges the appellate Court not to disrupt this long-standing and widespread practice. “CDL has become a critical part of library practice in the United States because it provides a reasonable way to offer digital access to libraries’ legally acquired collections. Over 100 libraries across the United States rely on a CDL program to distribute their collections, particularly for out-of-print works, reserves, or for works that are less frequently circulated.” Read the full brief here.

HathiTrust. Digital Library consortium HathiTrust cautions the appellate court not to follow the district court’s ruling that IA’s use was “commercial” or harmed the publishers market, and warns against a broad ruling that could sweep in many other digital library practices. “[The district court’] ruling has been widely perceived by libraries as a threat to lending of digital copies in general, or even “part of a broader historical push to make libraries obsolete.” Neither the record in this case nor the applicable law supports such a result.” Read the full brief here.

Intellectual Property Law Professors. This brief focuses entirely on the district court’s deeply problematic ruling the the Internet Archive’s controlled digital lending program is “commercial.” “While there are many commercial fair uses, the Internet Archive’s digital lending program falls on the specially favored nonprofit, noncommercial side. The District Court therefore erred in interpreting “commercial” so broadly as to encompass the Internet Archive’s nonprofit lending.” Read the full brief here.

Kevin L. Smith and William M Cross. In this brief, two library and information scholars and historians with deep expertise regarding libraries and archives explain that “CDL is just one of numerous innovations in library services that have been developed and implemented through many decades and can be adapted to legal requirements. This case presents an opportunity for the Court to make clear that libraries, acting within the law, have the imperative to deploy technologies and build innovative services in furtherance of broad access to information.” Read the full brief here.

Law Library Directors, Professors and Academics. Over 50 law library directors, professors, librarians, and graduate students signed onto this brief arguing that the district court did not appropriately consider the public benefits of CDL. “Neither the public nor authors, both of whom are the intended beneficiaries of copyright, benefit from libraries spending public or community funds on the same content repeatedly instead of acquiring new content. The logical consequence is that the public has access to fewer authors and works, fewer authors get wide exposure, and fewer works are preserved for future generations.” Read the full brief here.

Wikipedia, Creative Commons, and Project Gutenberg. Three prominent open knowledge organizations filed this brief focusing on the damage the lower court ruling could do to all nonprofit uses of in-copyright material. “The district court’s decision contains factual and legal errors that, if endorsed by this Court, could threaten the ability of all nonprofits to make fair use of copyrighted material.” Read the full brief here.



Internet Archive Defends Digital Rights for Libraries

Earlier today, we filed our opening appellate brief in Hachette v. Internet Archive, reaffirming our commitment to preserving knowledge for future generations.

Statement from Brewster Kahle, founder and digital librarian of the Internet Archive: We submitted our appeal to the court today to protect the core mission of libraries—preservation and access. This is a fight to keep library books available for those seeking truth in the digital age. 

Libraries are not just repositories of books; they are guardians of history and the published record. In this time of wars, election angst, and unstable moments for democracy, this fight gains even more importance.

Why should everyone care about this lawsuit? Because it is about preserving the integrity of our published record, where the great books of our past meet the demands of our digital future. This is not merely an individual struggle; it is a collective endeavor for society and democracy struggling with our digital transition. We need secure access to the historical record. We need every tool that libraries have given us over the centuries to combat the manipulation and misinformation that has now become even easier.

This appeal underscores the role of libraries in supporting universal access to information—a right that transcends geographic location, socioeconomic status, disability, or any other barriers. Our digital lending program is not just about lending responsibly; it’s about strengthening democracy by creating informed global citizens.

The stakes of the lower court decision are high. Publishers coordinated by the AAP (Association of American Publishers), have removed hundreds of thousands of books from controlled digital lending. The publishers have taken more than 500 banned books from our lending library, such as 1984, The Color Purple, and Maus. This is a devastating loss for digital learners everywhere. 

This lawsuit is about more than the Internet Archive; it is about the role of all libraries in our digital age. This lawsuit is an attack on a well-established practice used by hundreds of libraries to provide public access to their collections. The disastrous lower court decision in this case holds implications far beyond our organization, shaping the future of all libraries in the United States and unfortunately, around the world.

If this decision is left to stand, it will take away a library’s ability to lend books from its permanent collections to digital learners.

In the face of challenges to truth, libraries are more vital than ever. 

Let this be a call to action—to protect the core mission of libraries in our digital age.

—Brewster Kahle

Watch full remarks

Statement from Corynne McSherry, legal director of the Electronic Frontier Foundation: “The publishers are not seeking protection from harm to their existing rights. They are seeking a new right: the right to take advantage of technological developments to control how libraries may lend the books they own.” Watch full remarks.

Statement from Michael Blackwell, public library director, St. Mary’s County Library, Maryland: “The digital revolution has helped libraries reach beyond our doors but also presented enormous challenges. Publisher terms prevent us from offering in digital the robust collections we have in print. Literally millions of titles will never be digitized by the publishers because they have no profit incentive. We cannot even guarantee that digital titles we license today will be available tomorrow. To fulfill their traditional mission—the  preservation and dissemination of knowledge to benefit the public—libraries must be allowed to share online the books they legitimately own, as the Internet Archive is doing. Both literally and figuratively, we cannot afford a future in which giant corporations keep reading locked away behind paywalls, and libraries own nothing.”

Statement from John Chrastka, executive director, EveryLibrary: “The Internet Archive is focused on the same goal as every other library: helping readers access books and resources. The ability to lend is fundamental to the work of libraries, and Controlled Digital Lending is a digital solution for that core role. The outcome of this case will have far-reaching implications for readers across the country. I hope the court affirms the ability of all libraries to lend.”

Statement from Winston Tabb, Library of Congress & Johns Hopkins University Library (retired): “The Internet Archive, under the inspiring leadership of Brewster Kahle, is one of the most innovative libraries in the world today. Its focus on preserving and making content accessible to users in responsible ways is a model for other libraries.”

How to Take Action:

1. Send a message to the publishers

Share on X (formerly Twitter): Post to your followers

Hey @HachetteUS, @HarperCollins, @penguinrandom & @WileyGlobal: Instead of suing libraries like @internetarchive, just sell them ebooks they can own & preserve for the public. #SellDontSue

Facebook & Mastodon:

Hey #Hachette, #HarperCollins, #PenguinRandomHouse & #Wiley: Instead of suing libraries like #InternetArchive, just sell them ebooks they can own & preserve for the public. #SellDontSue

2. Support the Internet Archive 

Support the Internet Archive to continue fighting for libraries.

3. Stay connected

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

Statement from Corynne McSherry, Legal Director, Electronic Frontier Foundation

The Electronic Frontier Foundation is proud to join with our co-counsel Morrison and Foerster to represent the Internet Archive in challenging the district court’s ruling in this case.

For centuries, libraries have served their patrons by purchasing books and lending them for free. In the United States, libraries predated the founding of the nation – in fact they contributed to it by improving access to knowledge. Today, libraries serve many purposes, providing Internet access, meeting spaces, and even community pantries. But the heart of their mission remains the same: lending.

What has changed is how that core mission is accomplished. Like copyright law itself, library lending has evolved as new systems and technologies have created new ways to meet patron needs. For the past decade, that evolution has included controlled digital lending—a modern, more efficient version of lending that is used by libraries across the country. Controlled digital lending allows libraries to lend books via the internet subject to strict controls, for a limited time, to one patron at a time.

But four giant publishers claim that this service violates their copyrights and threatens their businesses. They are wrong: Libraries have paid publishers billions of dollars for the books in their print collections. CDL merely helps libraries better serve their patrons, but still lending just one book at a time. It is fundamentally the same as traditional library lending and poses no harm to authors or the publishing industry. In fact, the concrete evidence in this case shows that the Archive’s digital lending does not and will not harm the market for books.

The district court gave short shrift to that evidence, one of many flaws in the ruling. Another was that it concluded that the Internet Archive’s free public library is actually a commercial activity. According to the court, a nonprofit has a commercial purpose if it derives virtually any benefit connected to its a work – including ordinary nonprofit activities like attracting new members, receiving recognition from its community, or having a donate button its website. That definition of “commercial” runs contrary to well-established precedent. What is worse, it would apply to almost every library and public interest organization in the country. It doesn’t make sense.

Our brief explains why the court was wrong, and why controlled digital lending is a lawful fair use. But the core problem is this: The publishers are not seeking protection from harm to their existing rights. They are seeking a new right: the right to take advantage of technological developments 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. We are confident the Second Circuit will see that, and rule according.

Statement from Brewster Kahle: Appeal is ‘a fight to keep library books available for those seeking truth in the digital age.’

On December 15, 2023, Brewster Kahle, founder and digital librarian of the Internet Archive, spoke at a press event for the filing of Internet Archive’s opening appellate brief in Hachette v. Internet Archive. These are his remarks:

We submitted our appeal to the court today to protect the core mission of libraries—preservation and access. This is a fight to keep library books available for those seeking truth in the digital age. 

Libraries are not just repositories of books; they are guardians of history and the published record. In this time of wars, election angst, and unstable moments for democracy, this fight gains even more importance.

Why should everyone care about this lawsuit? Because it is about preserving the integrity of our published record, where the great books of our past meet the demands of our digital future. This is not merely an individual struggle; it is a collective endeavor for society and democracy struggling with our digital transition. We need secure access to the historical record. We need every tool that libraries have given us over the centuries to combat the manipulation and misinformation that has now become even easier.

This appeal underscores the role of libraries in supporting universal access to information—a right that transcends geographic location, socioeconomic status, disability, or any other barriers. Our digital lending program is not just about lending responsibly; it’s about strengthening democracy by creating informed global citizens.

The stakes of the lower court decision are high. Publishers coordinated by the AAP (Association of American Publishers), have removed hundreds of thousands of books from controlled digital lending. The publishers have taken more than 500 banned books from our lending library, such as 1984, The Color Purple, and Maus. This is a devastating loss for digital learners everywhere. 

This lawsuit is about more than the Internet Archive; it is about the role of all libraries in our digital age. This lawsuit is an attack on a well-established practice used by hundreds of libraries to provide public access to their collections. The disastrous lower court decision in this case holds implications far beyond our organization, shaping the future of all libraries in the United States and unfortunately, around the world.

If this decision is left to stand, it will take away a library’s ability to lend books from its permanent collections to digital learners.

In the face of challenges to truth, libraries are more vital than ever. 

Let this be a call to action—to protect the core mission of libraries in our digital age.

—Brewster Kahle

Updated 12/15/23 to include video.

Internet Archive Files Appeal in Publishers’ Lawsuit Against Libraries

Today, the Internet Archive has submitted its appeal [PDF] in Hachette v. Internet Archive. As we stated when the decision was handed down in March, we believe the lower court made errors in facts and law, so we are fighting on in the face of great challenges. We know this won’t be easy, but it’s a necessary fight if we want library collections to survive in the digital age.

Statement from Brewster Kahle, founder and digital librarian of the Internet Archive:
“Libraries are under attack like never before. The core values and library functions of preservation and access, equal opportunity, and universal education are being threatened by book bans, budget cuts, onerous licensing schemes, and now by this harmful lawsuit. We are counting on the appellate judges to support libraries and our longstanding and widespread library practices in the digital age. Now is the time to stand up for libraries.”

We will share more information about the appeal as it progresses. 

To support our ongoing efforts, please donate as we continue this fight! 

What the Hachette v. Internet Archive Decision Means for Our Library

Our library is still strong, growing, and serving millions of patrons. But the publishers’ attack on basic library practices continues.

Linking references in Wikipedia to the cited page in our library.

Last Friday, the Southern District of New York court issued its final order in Hachette v. Internet Archive, thus bringing the lower court proceedings to a close. We disagree with the court’s decision and intend to appeal. In the meantime, however, we will abide by the court’s injunction. 

The lawsuit only concerns our book lending program. The injunction clarifies that the Publisher Plaintiffs will notify us of their commercially available books, and the Internet Archive will expeditiously remove them from lending. Additionally, Judge Koeltl also signed an order in favor of the Internet Archive, agreeing with our request that the injunction should only cover books available in electronic format, and not the publishers’ full catalog of books in print. Separately, we have come to agreement with the Association of American Publishers (AAP), the trade organization that coordinated the original lawsuit with the four publishers, that the AAP will not support further legal action against the Internet Archive for controlled digital lending if we follow the same takedown procedures for any AAP-member publisher. 

So what is the impact of these final orders on our library? Broadly, this injunction will result in a significant loss of access to valuable knowledge for the public. It means that people who are not part of an elite institution or who do not live near a well-funded public library will lose access to books they cannot read otherwise. It is a sad day for the Internet Archive, our patrons, and for all libraries.

Because this case was limited to our book lending program, the injunction does not significantly impact our other library services.  The Internet Archive may still digitize books for preservation purposes, and may still provide access to our digital collections in a number of ways, including through interlibrary loan and by making accessible formats available to people with qualified print disabilities. We may continue to display “short portions” of books as is consistent with fair use—for example, Wikipedia references (as shown in the image above). The injunction does not affect lending of out-of-print books. And of course, the Internet Archive will still make millions of public domain texts available to the public without restriction.

Regarding the monetary payment, we can say that “AAP’s significant attorney’s fees and costs incurred in the Action since 2020 have been substantially compensated by the Monetary Judgement Payment.” 

Thanks to your continued support, our library is still strong, growing, and serving millions of patrons.

Libraries are going to have to fight to be able to buy, preserve, and lend digital books outside of the confines of temporary licensed access. We deeply appreciate your support as we continue this fight!

San Francisco Board of Supervisors Unanimously Passes Resolution in Support of Digital Rights For Libraries

San Francisco City Hall from east end of Civic Center Plaza

In a stunning show of support for libraries, late yesterday afternoon the San Francisco Board of Supervisors voted unanimously to support a resolution backing the Internet Archive and the digital rights of all libraries.

Supervisor Connie Chan, whose district includes the Internet Archive, authored the legislation and brought the resolution before the Board. “At a time when we are seeing an increase in censorship and book bans across the country, we must move to preserve free access to information,” said Supervisor Chan. “I am proud to stand with the Internet Archive, our Richmond District neighbor, and digital libraries throughout the United States.”

WATCH Supervisor Chan introduce the resolution:

What’s in the resolution?

The resolution is a powerful statement in support of libraries, beginning:

Resolution recognizing the irreplaceable public value of libraries, including online libraries like the Internet Archive, and the essential rights of all libraries to own, preserve, and lend both digital and print books to the residents of San Francisco and the wider public; supporting the Internet Archive and its public service mission; and urging the California State Legislature and the United States Congress to support digital rights for libraries, including controlled digital lending and the option for libraries to own their digital collections. 

Read the full resolution

Rally on the steps of San Francisco City Hall

Supporters surround Internet Archive founder Brewster Kahle and District 1 Supervisor Connie Chan on the steps of City Hall.

Before the vote, supporters rallied outside on the steps of City Hall. Joining Supervisor Chan on the steps were Brewster Kahle, Internet Archive; Cindy Cohn, Electronic Frontier Foundation; Chuck Roslof, Wikimedia Foundation; and author and activist Liz Henry.

“It’s a sad day that we have to be here to talk about the importance of maintaining access to information through libraries,” said Brewster Kahle, Digital Librarian of the Internet Archive. “We must stand firm in our commitment to providing Universal Access to All Knowledge.”

“The Internet Archive and its goal of universal access to all human knowledge represents the best of Technology.” said Cindy Cohn, Executive Director of the Electronic Frontier Foundation. “We must stand up for the privacy of our reading, the digital lending strategies that publishers want to promote violates our privacy and our ability to investigate freely.”

“The work of the Wikimedia Foundation centers around providing access to knowledge for all people, around the world.” said Chuck Roslof, Lead Counsel at the Wikimedia Foundation. “In this mission, Wikipedia doesn’t stand alone. Libraries and archives play a critical role as part of our ecosystem of free knowledge, to ensure that all of us have access to reliable, accurate information about the world around us. The Internet Archive is the internet’s library, and it is an invaluable resource to Wikipedia editors and readers…”

Author and disability justice activist Liz Henry spoke about the importance of digital libraries from their experience as a wheelchair user. “Access to digital lending from libraries and the Internet Archive is a critical lifeline for disabled people and seniors.” said Henry, going on to explain how they used the Internet Archive to research a brick that they found under their house during construction. Using materials from the web, as well as digital books from the Internet Archive and San Francisco Public Library, Henry was able to determine that the brick, stamped C H for City Hall, was manufactured in the 1870s, and was part of the original City Hall structure, which burned down in the 1906 earthquake. Henry completed their research while they were having mobility issues and limited to the house, underscoring the importance of digital access to library materials. You can read more about this fascinating discovery on Henry’s blog. 

Many thanks to Supervisor Chan for being a strong advocate for libraries, and for making San Francisco the first municipality to codify the importance of digital libraries and controlled digital lending in a resolution. Many thanks as well to all the supporters who joined us on the steps and who submitted letters in support of the resolution.

Supporters Rally For Library Digital Rights on the Steps of the Internet Archive

More than one hundred supporters gathered on the steps of the Internet Archive last Saturday to rally support for our library in the face of a judgment that threatens the digital future of all libraries. 

Digital rights advocate Lia Holland of Fight for the Future read from the letter signed by Neil Gaiman, Naomi A. Klein, Chuck Wendig, Karen Joy Fowler, Cory Doctorow and more than 1,000 additional authors who are speaking out on behalf of libraries, demanding that publishers and trade associations put the digital rights of librarians, readers, and authors ahead of shareholder profits.

Cindy Cohn, the Executive Director of the Electronic Frontier Foundation (EFF), who are representing Internet Archive in our lawsuit, underscored the valuable role that libraries play in protecting reader privacy; values that are not shared by the corporations and platforms that have become intertwined around ebooks. “When libraries can’t own ebooks, how private will your reading be?” Cohn asked. “Everyone deserves the right to read without someone looking over their shoulder.”

The Internet Law & Policy Foundry’s Lili Siri Spira spoke from her perspective as a “Gen-Z-Millennial cusper growing up on the Internet” about the importance of access to quality information in the face of book bannings and attacks on libraries. “As a former open-source investigator, I know first-hand how important open and free access to knowledge is in order to address the world’s injustices…As a former misinfo analyst, I know what information is out there to replace these burned books and it’s not good,” she said.

Brewster Kahle, the founder and digital librarian of the Internet Archive, gave an impassioned plea about why the lawsuit against the Internet Archive is harmful to libraries and the entire publishing ecosystem. “[The lawsuit] doesn’t make any sense for authors, it doesn’t make any sense for readers, it doesn’t make any sense for libraries, and it doesn’t make any sense for publishers. The library system…has always bought lots of books. But now, [the publishers] are saying you cannot buy an ebook. This makes no sense!” 

The rally wrapped with cheers for continued action in support of libraries’ digital rights. As EFF’s Cindy Cohn shouted to roars from the crowd, “On to the court of appeals!”

The Fight Continues

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

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.