In a move that was widely expected, several large US publishers have filed a lawsuit against the Internet Archive due to its provocative move earlier this year to establish a National Emergency Library.
If you’re just hearing of this, here’s the short version of what happened: The Archive is a nonprofit that encompasses many public-good initiatives, one of which involves an online lending library—known as the Open Library—which includes both public domain and copyright protected work. However, this library does not pay authors or publishers for digital lending, as public libraries do. Rather, it engages in a practice known as “controlled digital lending” (explained here), where a print copy is digitized and lent out to people one copy at a time, just as a print copy would be, without licensing or payment. This practice has not been put to the test in a court of law and is widely considered by publishers as piracy by another name.
As we’ve been warning for more than a year, the Internet Archive seems to be purposefully pushing the boundaries of what is considered legal, perhaps even inviting a lawsuit. And indeed, with the National Emergency Library—which makes the Open Library catalog of 1.4 million ebooks available to be borrowed simultaneously by anyone worldwide, without compensation to the copyright holders—publishers have decided they must draw a line.
Earlier this month, Hachette, HarperCollins, Penguin Random House, and Wiley (all members of the Association of American Publishers) sued the Internet Archive for “willful mass copyright infringement,” calling the Open Library “one of the largest known book pirate sites in the world.” The suit is about not just the Archive’s library, but also controlled digital lending. The suit says, “CDL is an invented paradigm that is well outside copyright law.” Both AAP and the Authors Guild support the suit.
It’s tough to find anyone in the trade publishing community defending the Internet Archive, at least on the record. Typically you have to cross over into the scholarly communities—e.g., university librarians and law professors—to find supporters, some of whom believe copyright law is due for reform. We did notice this Twitter thread from Andrew Savikas (previously at O’Reilly, now at GetAbstract), where he expresses doubt that publishers wish to shut down the Internet Archive entirely, given that the organization’s efforts include valuable resources, such as the Wayback Machine. Rather, Savikas believes publishers and authors are annoyed that the Archive’s founder, Brewster Kahle, hasn’t asked for permission to enact his emergency library, while Kahle is annoyed that he should have to ask. Over at Ars Technica, a reporter asks copyright experts if the Archive has a strong fair-use case. The response: not really.
Jane Friedman has spent her entire career working in the publishing industry, with a focus on business reporting and author education. Established in 2015, her newsletter The Bottom Line provides nuanced market intelligence to thousands of authors and industry professionals; in 2023, she was named Publishing Commentator of the Year by Digital Book World.
Jane’s expertise regularly features in major media outlets such as The New York Times, The Atlantic, NPR, The Today Show, Wired, The Guardian, Fox News, and BBC. Her book, The Business of Being a Writer, Second Edition (The University of Chicago Press), is used as a classroom text by many writing and publishing degree programs. She reaches thousands through speaking engagements and workshops at diverse venues worldwide, including NYU’s Advanced Publishing Institute, Frankfurt Book Fair, and numerous MFA programs.
