On July 27, the Internet Archive (IA) responded to a copyright infringement lawsuit filed by publishers Hachette, HarperCollins, Wiley, and Penguin Random House by filing a brief in the U.S. Southern District of New York that denies all charges of willful infringement.

“Copyright law does not stand in the way of libraries’ right to lend, and patrons’ right to borrow, the books that libraries own,” reads the response, which demands a jury trial.

The lawsuit was filed on June 1 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, aiming to provide reading and research materials to users whose K–12, public, and academic libraries had been suddenly closed due to the COVID-19 pandemic.

The service was “a response to the scores of inquiries from educators about the capacity of our lending system and the scale needed to meet classroom demands because of the closures,” Chris Freeland, IA’s director of Open Libraries, wrote in a blog post explaining the launch. “The books that we’ve digitized have been acquired with a focus on materials published during the 20th century, the vast majority of which do not have a commercially available ebook. This means that while readers and students are able to access latest best sellers and popular titles through services like OverDrive and Hoopla, they don’t have access to the books that only exist in paper, sitting inaccessible on their library shelves. That’s where our collection fits in.”

Although IA discontinued the unlimited simultaneous lending model on June 16—two weeks before the Emergency Library was originally scheduled to shut down—and from the beginning had offered publishers and authors a way to opt out, the lawsuit is still in progress and may ultimately impact IA’s ongoing digitization efforts.

"Publishers have long supported public libraries, recognizing the significant benefits to the public of ready access to books and other publications," the publishers said in the lawsuit. "This partnership turns upon a well-developed and longstanding library market, through which public libraries buy print books and license ebooks (or agree to terms of sale for ebooks) from publishers, usually via book wholesalers or library ebook aggregators. IA’s activities are nothing like those of public libraries, but rather the kind of quintessential infringement that the Copyright Act directly prohibits."

The Emergency Library drew on the digital collections of IA’s Open Library project. Founded in 2006 with the goal of creating a web page of metadata and other information for every book ever published, the initiative has grown into a substantial digitization operation, accepting donations from hundreds of libraries, or in several cases partnering with libraries to digitize and enable online public access to historical holdings, such as Boston Public Library’s Sound Archives Collection. Last November, IA’s longtime not-for-profit partner Better World Libraries acquired Better World Books, meaning that when libraries and other organizations weed titles and send them to Better World Books, selected titles will now be directed into IA’s book digitization program.

IA then digitizes the content, sends the files to the donor institution, and warehouses the physical copies. Since 2011, the Open Library has loaned these digital copies to the public on a one physical copy, one ebook, one user basis using digital rights management software that prevents the creation of additional copies during loans and enables IA to recall/delete the copy from the user’s device after the lending period.

This model, now popularly known as Controlled Digital Lending (CDL), has drawn support from a growing number of public and academic libraries, and in 2018, Kyle K. Courtney, copyright advisor for Harvard University and founder of the Copyright First Responders initiative, and David R. Hansen, associate university librarian for Research, Collections and Scholarly Communications, Duke University Libraries, wrote A White Paper on Controlled Digital Lending of Library Books explaining the legal and policy rationale for CDL.

“Ultimately, [CDL] is about how libraries can do what they’ve always done—lend books,” Courtney explained during a July 22 virtual press conference in support of IA and CDL. “The [white] paper looks at the underpinnings of the library’s historical mission through the lens of fair use and first sale—two critical rights that I think any library uses in their programs, both for lending and preservation…. Libraries do not need permission to loan books they have purchased or acquired. Copyright law covers those exact issues.”

However, fair use doctrine does specify that its protections do not extend to making and distributing complete copies of a copyrighted work, which is a significant technicality when books are copied and transferred as digital files, even if the original print edition is owned and stashed away. As a result, the CDL model lacks clearly defined permissions in the U.S. Copyright Act, and has been strongly criticized by groups such as the Authors Guild and Association of American Publishers.

"We authors want everyone to have access to books, but there are already thousands of excellent public libraries in the United States devoted to providing free access to ebooks," Douglas Preston, author and president of the Authors Guild said in a statement supporting the publishers' lawsuit. "Legitimate libraries pay for those ebooks, and a portion of that flows back to authors as royalties, helping ensure they can continue to write."

The current lawsuit describes IA’s program as the “purposeful collection of truckloads of in-copyright books to scan, reproduce, and then distribute digital bootleg versions online,” and describes CDL as “an invented theory…the rules of which have been concocted from whole cloth and continue to get worse.” The lawsuit acknowledges that CDL generally implies the one physical copy, one ebook, one user lending model, but claims that IA “opportunistically seized upon the global [COVID-19] health crisis to further enlarge its cause, announcing with great fanfare that it would remove these already deficient limitations that were purportedly in place.”

In an April interview with LJ—prior to the lawsuit but after the Emergency Library had been in operation for about a month—IA founder and digital librarian Brewster Kahle estimated that “90 percent” of books appeared to have been borrowed for reference, fact checking, or browsing, with checkouts often lasting less than 30 minutes. “People come in and out of these books, kind of like they’re flipping through a book from a shelf,” he said.

Kahle and Freeland both emphasized that the Open Libraries initiative was never intended to be a competitor to library ebook services such as OverDrive, and the Emergency Library was a temporary solution for an extraordinary circumstance.

“Teachers are trying to support their students, and they’re cut off from books in their classroom,” following the sudden closure of K–12 schools across the country due to the pandemic, Kahle said. Freeland added that “we keep running into this story day in and day out…. A school district has purchased ‘X’ number of copies of a book, but they can’t get access to them…and the school doesn’t have the budget to buy [duplicative] ebook licenses.”

Although the evidence is anecdotal, IA has been collecting and publishing testimonials regarding this type of use of the Emergency Library by educators, librarians, students, and researchers since the lawsuit was filed. In its filing, the organization contends that CDL operates within the bounds of U.S. copyright law, and that its Emergency Library was a temporary program designed to help educators during a crisis.

“The Internet Archive has made careful efforts to ensure its uses are lawful,” IA’s filing states. “The Internet Archive’s CDL program is sheltered by the fair use doctrine, buttressed by traditional library protections. Specifically, the project serves the public interest in preservation, access, and research—all classic fair use purposes. Every book in the collection has already been published and most are out of print. Patrons can borrow and read entire volumes, to be sure, but that is what it means to check a book out from a library. As for its effect on the market for the works in question, the books have already been bought and paid for by the libraries that own them. The public derives tremendous benefit from the program, and rights holders will gain nothing if the public is deprived of this resource.”