The Internet Archive (IA), creator of the famed Wayback Machine and numerous other free services, has announced that it will appeal a legal decision against it in a suit by publishers over copyright infringement. In that case, four publishers, Hachette, HarperCollins, John Wiley and Penguin Random House successfully sued the IA over its Open Library. That was a service where IA loaned digital reproductions of printed books to its patrons without charge, and without payment to or permission from the publishers.
Copyright law forbids the making of copies of copyrighted books and passing them on to others. However, it permits the passing on, whether through gift or sale, of books legally obtained to others. That is why you can give a book you purchased to a friend or sell it on eBay. That is also why a library can lend books it has purchased to whoever and how ever many patrons it wishes.
What the Open Library did was on the borderline. It wanted to lend books it had legally obtained just like any other library. However, they offer a digital library, books lent digitally over the internet. What they did to try to stay with the bounds of the law was to make photocopies of books they owned, turned them to digital files, and lent those. They were only of books they legally owned, either through purchase or gift. When they lent a book, they would only lend as many digital copies as they owned of physical copies. That way, it was limited in the same way regular libraries are as to how many copies they could lend while meeting the needs of the digital age when it came to lending. Of course, they could have obtained digital copies from the publishers, but unlike physical books, there tends to be limitations on how many times they can be lent without incurring additional charges. Under those circumstances, it is hard to obtain free copies donated to them by others.
The District Court for the Southern District of New York was having nothing to do with this line of reasoning. The Judge saw this as basically a case of copying a copyrighted work and passing it along. To the Judge, it was an open and shut case of copyright infringement. Case closed. Summary judgment was granted to the publishers with no need for a trial.
IA and the publishers entered into a settlement agreement in August. Basically, it provided that the IA would follow the Judge's permanent injunction against lending digital files made from physical copies of books, and pay some unspecified amount in damages. However, the agreement also stated that the IA retained the right to appeal the verdict and cancel the settlement if they won on appeal. The IA did exactly that a few weeks later. They appealed.
Brewster Kahle, founder and digital librarian for the Internet Archive, issued the following statement in conjunction with the appeal: “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.”
The Association of American Publishers quickly issued a response. They said, “The publisher plaintiffs and AAP community stand behind the District Court’s clear opinion in this case, establishing that that Internet Archive’s industrial scale format-shifting activities constitute copyright infringement, consistent with ample other precedent that defines the clear boundaries of fair use and first sale provisions. There is simply no legal support for the notion that Internet Archive or a library may convert millions of eBooks from print books for public distribution without the consent of, or compensation to, the authors and publishers.”
The Internet Archive also said, “...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.” They are right. The fight won't be easy. They already have one judgment against them and there is copying taking place, even if the end result is in effect lending a book they already own. However, the IA feels the fight is important and they will proceed to fight to the finish.
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