The Internet Archive (IA) in September submitted an appeal to the summary judgment against them in the Hachette v. Internet Archive copyright case, and IA is now asking the Second Court of Appeals for a deadline of December 15 for submitting its opening brief, IA Senior Policy Counsel Lila Bailey announced during the organization’s Virtual Library Leaders Forum earlier this month.

“For those of you who are interested in filing amicus briefs, that means that your briefs will be due anytime between December 15th and December 22nd,” Bailey added, noting that the publishers involved in the suit will then have 90 days to respond.

The lawsuit—which involves plaintiffs Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House—was filed on June 1, 2020, in response to the March 24 launch of IA’s “National Emergency Library,” which temporarily offered unlimited simultaneous access to IA’s collection of 1.4 million digitized books.

IA has contended throughout the case that the emergency library program was launched in response to the initial wave of the COVID-19 pandemic, enabling teachers, students, and researchers to access content when many K–12, public, and academic libraries were closed. But while the program ended on June 16, 2020, the lawsuit has continued, with the plaintiffs arguing that IA’s Open Library project violates copyright protections. The Open Library project uses controlled digital lending (CDL) to loan out ebooks on a one user, one physical copy owned by IA, one digitized ebook basis, a system that many librarians and institutions believe “mirror[s] traditional library practices permitted by copyright law,” according to a position statement from the CDL movement.

In the summary judgment in March, Judge John Koeltl of the United States District Court in the Southern District of New York disagreed, writing that “an ebook recast from a print book is a paradigmatic example of a derivative work” and therefore should not be protected by fair use doctrine.

“These large-scale publishing conglomerates are stripping libraries of what it is they classically do, which is buy, preserve, and lend materials,” IA founder Brewster Kahle said of the lawsuit during the Virtual Library Leaders Forum. “Publishers are saying you can't do any of these.” If libraries are left with no way to lend digitized copies of the books and physical media they own, eventually “we will not survive if we're just [institutions offering] out-of-copyright or even at just out-of-print works,” he argued. Libraries “will be defunded. It will become a museum of books.”

Bailey agreed, later adding “many large media corporations are pushing for a world in which they own all information, while libraries can only rent it [via licensing]. The recent lawsuits brought against the Internet Archive are part of this corporate agenda. Libraries are well situated to distribute the benefits of new technologies to the public, but not if these benefits are locked up by rights holders. The outcome of these lawsuits will affect all libraries. We are fighting for our right to own knowledge and not just rent it from corporate information landlords.”

Also, while some groups representing authors—such as the Authors Guild—oppose CDL, “it's really important to emphasize that there are authors…with a wide variety of perspectives on controlled digital lending,” David Hansen, executive director of the Authors Alliance, said during the Virtual Library Leaders Forum. Regarding IA’s Open Library, “our perspective is that we need a copyright system that really promotes access to knowledge, and this is the kind of system that does that.”

Hansen argued that the rhetoric in the lawsuit about the Open Library’s impact on the publishing industry was often excessive. “There are quotes in there about how this is going to destroy the ecosystem that makes books possible in the first place,” he said. The current publishing system “is not perfect…but the problem is not librarians lending their books on the internet…. The real problem is that most authors are forced to compete within a system that’s really rigged by the very publishers that have brought this lawsuit…. Publishers are really, really pushing for more control, but it’s not to benefit the authors, it’s to add their bottom line.”

On a more positive note, Kahle said that IA’s Interlibrary Loan program has been continuing to grow. The service is free for reciprocal libraries and includes “large periodical collections from microfilm, scanned print, and publicly available web postings, as well as a large and growing monograph collection.” Currently, the service is available through RapidILL, ILLiad, Worldshare ILL, ReShare, ISO 18626 users, and to members of the Boston Library Consortium and IDS Project partners.

And Democracy’s Library, a free “online compendium of government research and publications from around the world” that IA launched a year ago, is performing well. “Think of this as Gov Docs writ large,” Kahle said. “This is just fantastic to see that these shelves and shelves of materials that are now…becoming widely available and minable…. [Researchers can] finally make real use of these government documents that have been curated and cared for for decades but often receive not very much use.”