Internet Archive Faces Legal Setback, Existential Threat

The Internet Archive is facing what some call a landmark legal challenge that could result in its own and its contemporaries’ ruin. On March 24, an American federal court delivered a preliminary judgement on the ongoing Hachette vs. Internet Archive case. Ruling against the Internet Archive, Judge John G. Koetl determined that lending that took place under the scope of the short-lived National Emergency Library program constituted an infringement of copyright law, setting a precedent that puts the continued existence of the Archive and those organizations similar to it in jeopardy.

The Internet Archive defines itself as an organization built around “providing universal access to all knowledge.” It was founded in 1996 by Massachusetts Institute of Technology graduate and activist Brewster Kahle, who still leads the organization as chairman today. Working with institutions such as libraries and museums, the Archive aims to preserve and facilitate free access to literature, film, music and other forms of media. This mission to democratize knowledge is largely promoted by lending the millions of ebooks hosted on the site to readers worldwide. The importance of ebook lending, in this particular case and more generally, cannot be understated: trial documents highlight an atmospheric rise in demand, with digital checkouts increasing sevenfold from 2007 to 2013, and reveal that the Internet Archive itself currently facilitates over 70,000 ebook checkouts a day.

This new frontier has, of course, forced publishing companies, the vanguard of copyright law, to create and maintain new rules and regulations to protect the rights of their creatives. The industry standard is a “one-copy, one-user” model that foresees libraries paying a fee for a single licensed copy of an ebook, which can then be checked out by one person at a time. Such licensing models generate millions upon millions of dollars for publishers, who see them as an indispensable method of protection. On the other hand, the Internet Archive has a different way of doing things: print books are acquired and then scanned, with the resulting ebook being hosted on the archive while the physical copy is kept in storage. Crucially, an ebook is not distributed en masse — the Archive uses “Controlled Digital Lending,” operating very much like a traditional library would: a one-to-one owned-to-loaned ratio, as described by the Controlled Digital Lending website. The Archive maintains that this practice is essential to effectively distribute information, especially to those who may have trouble accessing library collections due to geographical or mobility-based barriers.

March 2020 saw the nationwide shuttering of libraries across the United States, which took more than 60 million print books out of circulation instantly. The Archive, seeking to use its unique position to address the problem quickly and efficiently, launched the National Emergency Library on March 24th. The library was distinguished by the fact that the same digital copy of a book could be loaned to up to 10,000 readers simultaneously, a grave breach of the Controlled Digital Lending ethos and eventually, a harbinger of certain doom. Originally planned to run until the end of the national “emergency," the library was shut down after merely 12 weeks in operation due to the aforementioned complaint filed in opposition by Hachette Book Group, one of the largest publishers in the world. Hachette was soon joined by Penguin Random House, HarperCollins and Wiley, forming a group that contained three of the “Big Five” of the publishing world.

Replying to the scathing complaint, the Archive asserted that its use of print books was merely a case of fair use, both generally within the scope of Controlled Digital Lending and specifically in the unique case of the emergency library. Publishers disagreed, describing the Archive as a “pirate site” and its business model as “parasitic and illegal,” denigrating Controlled Digital Lending as “an invented paradigm which is well outside copyright law,” “conceived…to cast aside well-established copyright jurisprudence.” The plaintiffs advanced the claim that print and digital books were separate mediums with separate markets, a stance contrary to the one they assigned to the Archive. They reinforced that copyright law had endowed publishing companies with the right to develop and extract the full value of each market with methods appropriate to the medium, a right which would be breached if the Archive were allowed to continue its distribution activities.

The Archive on March 17 mounted a defense against an unconvinced Judge Koetl, who has released his opinion of the case where he sides unequivocally with the plaintiffs on almost all points. An important point of contention was the so-called “transformative nature” of a work, which renders usage of it covered under the umbrella of fair-use. Google Books, for example, had previously been protected under this principle because it created a directory of books, rather than simply uploading copies online. The Archive, in contrast, was found by Koetl to have created only “derivative” works, which do not serve a new and different function from the original and are in fact substitutes for it. As such, the opinion asserts that “there is no such right [to make the necessary number of copies of a book to facilitate lending, so long as it is lent out to one person at a time, as claimed by the Archive], which risks eviscerating the rights of authors and publishers to profit from the creation and dissemination of derivative works.” Similar rebuttals are offered to every other assertion defended by the Archive, an unsurprising result from a courtroom distinctly marked by tense exchanges between the defense lawyer and the skeptical judge. Internet Archive founder Kahle responded in a blog post: “Libraries are more than the customer service departments for corporate database products. For democracy to thrive globally, libraries must 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.”

The Archive has, in the meantime, been determined to carry on the fight outside the strict parameters of the courtroom. Capitalizing on the “David vs. Goliath” optics of the case, the Archive has cast the case as an attempt to shut down the Archive by bankrupting it. Losing the legal battle could easily lead to billions of dollars in damages, money the Archive Certainly does not have. The Archive has started a donation campaign and created the “Battle For Libraries” movement which held a well-attended rally on the steps of the Archive’s San Francisco headquarters on April 8th. As mentioned on their website, the battle is against “Big publishers” that are “opening new paths for censorship.” The case, which the Archive has universalized into a fight for the right to equitable access to information, has become much bigger than just a court case, involving people and communities across the world.

The shower of support from people of all walks of life bears a common refrain: the particular importance of the Internet Archive for university students. Many a laudation has been written about the website which allows students to hunt down that elusive reading the professor has not bothered to put on Google Drive, which provides them with the perfect obscure-yet-respected source that allows something other than a website to be placed in a bibliography… Such comments are reflected across the SciencesPo Menton campus, where students that were asked their thoughts regarding the case in the aftermath of the ruling universally expressed feeling appalled and dismayed, and worried for the future of a website which had been an inescapable part of their academic journey.

Indeed, the ruling can drastically shift the bounds of what is considered acceptable in copyright law. Tempting fate by establishing a Controlled Digital Lending-free National Emergency Library, the Archive has brought upon itself a reckoning that has put into question the foundation of its business model, that of contemporaries in the field, and even its own existence. A final ruling that is expected to definitively address whether lending outside the National Emergency Library program is within the scope of the case is expected imminently, but until then, all signs indicate that any and all worrying about the future is well-placed. For now, the Archive insists that the fight continues.