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This archive broadened access during the pandemic. Then publishers sued — and won

By Nicholas Gerbis
Published: Thursday, August 17, 2023 - 4:36pm
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Brewster Kahle’s Internet Archive is best known for its Wayback Machine, a kind of museum of the forgotten web. It’s one of many reasons people say, “The internet never forgets.”

But the archive is also a lending library of physical books it has scanned and digitized, most of which don’t exist elsewhere in digital format. And, as long as it stuck to its policy of lending one copy of each owned-and-digitized work to a single user at a time, no one kicked up too much of fuss.

That changed when the pandemic closed schools and libraries. In response, Kahle threw open the doors to what he called the National Emergency Library and dropped restrictions on how many people could access its books at once.

It was meant to bridge a vital gap during a difficult time. Instead, it sparked a lawsuit by four major publishers: HarperCollins, Penguin Random House, Hachette and John Wiley & Sons.

Fair use doctrine vs. copyright infringement 

The lawsuit marks the latest skirmish in the ongoing war over who owns digital information. Publishers don’t like how easy it is to copy and share digital purchases; consumers and libraries object to their ebooks being treated like rentals.

Kale justified the National Emergency Library under the fair use doctrine, a flexible and context-sensitive legal principle that permits limited use of copyrighted material without first getting the copyright owner’s permission. Its purpose is to balance the rights of copyright holders against public interests.

The publishers called the expanded lending policy a “willful mass copyright infringement,” and the judge in the case, John G. Koeltl of U.S. District Court in Manhattan, agreed.

The courts have repeatedly held that consumers don’t own digital content. As spelled out in the fine print of any Amazon film purchase, customers don’t buy a digital movie — they pay for a long-term license to consume it. Unlike someone who buys a DVD, a digital customer can’t pass their movie around to friends or resell it.

The same, more or less, goes for music and books — even digital library books.

Proponents of the internet maxim that information should be free and accessible worry about how much content ends up behind paywalls. They also fret over how many books, albums or films might remain perpetually out of reach if their publishers or distributors see no commercial value in putting them back on the market.

Netflix offers on instructive example: As David Streitfeld pointed out in his New York Times article on the Internet Archive case, back when it was a mail order company, Netflix’s catalog of physical DVDs numbered around 100,000, including many hard-to-find classics. Since the company switched to streaming, its trove of titles has shrunk to a mere 6,600 U.S. titles, most of them recent.

Damages of $150,000 per book

Under the agreement, Kahle will remove the 127 books at issue and will pay a fee following his appeal. The publishers asked damages of $150,000 per book, but the actual agreement remains undisclosed.

However, the judge agreed with Kahle that the finding should be narrowly construed, so for now the fate of other books that are still unavailable in digital format remains unclear.

"This case did not concern copyrighted works that are not yet available in electronic form, and the parties therefore did not brief the legal issues related to such works," wrote Koeltl in a brief decision. "Accordingly, the Court has narrowly tailored the injunctive relief in this case to cover only copyrighted works, like the Works in Suit, that are available from the Publishers in electronic form."

Last week, music companies filed a similar lawsuit over the archive’s Great 78 program, which digitizes and loans music from another orphan media type: vintage 78 rpm records.

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