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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.”

Internet Archive Founder: “We are defending the rights of libraries to serve our patrons where they are, online”

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.

EFF Legal Director: “Copyright law does not stand in the way of a library’s right to lend its books”

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.

Author and Editor: “Internet Archive brings some measure of order and permanence to knowledge”

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.

Librarian: If the publishers’ lawsuit is successful, “libraries of all varieties and the communities they serve will suffer.”

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.

GITCOIN Grants: Donate a Few Tokens, Defend a Public Treasure

CALLING ALL COMMUNITY MEMBERS:

In just a few months, the lawsuit Hachette v. Internet Archive will be heard in court. In 2020, four of the world’s largest publishers sued our non-profit library to stop us from digitizing books and lending them for free to the public. The publishers and the corporations who own them, including News Corp and Bertelsmann, are demanding $20 million in damages and that we destroy 1.4 million digitized books. What’s really at stake? The right of all libraries to own, digitize and lend books of any kind. (Here’s what Harvard’s copyright advisor has to say about the consequences of our case.) Starting today, make a small donation through Gitcoin and have an enormous impact for the defense of Internet Archive, through Gitcoin’s quadratic funding.

Today, Gitcoin Grant Round 14 opens, supporting advocacy groups around the world. When you donate even $1 worth of crypto to the Internet Archive, it can result in $3-400+ from the matching pool. Quadratic funding rewards the number of community members who give, along with the amount. So many small donations can really have an enormous impact.

This is an example of the matching funds allotted in a previous Gitcoin Grant round.

HOW TO DONATE:

  1. First you’ll need to create or log in your Github account. 
  2. Use that account to authorize in to Gitcoin.  
  3. Choose one or both of our gitcoin grants here:
  1. You’ll need a crypto wallet like Metamask or Rainbow Wallet with some Ethereum or other tokens.
  2. Select how much you want to donate. (For example: .003 ETH = about $5.00 US)
  3. Do you want to also add some money to the matching pool? Be sure to set an amount in that field as well.
  4. Hit the “I’m Ready to Checkout” button.
  5. In the drop down menu, pick Standard Checkout, Polygon, or zkSync.
  6. Connect and log in to your crypto wallet to pay.
  7. BONUS: You can verify your identity by creating a Gitcoin Passport via Ceramic to maximize the matching funds (up to 150%).
  8. The more people who give, the greater the percentage of the matching pool we receive.
Checkout module for the Gitcoin Grant 14 Advocacy Round.

Thank you for taking these steps to unleash huge support for the Internet Archive, helping us pay the millions of dollars in legal fees we have already incurred. Your support helps ensure the Wayback Machine, Open Library, and all our games, concerts, books and films will be available to you for free for a very long time.