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The Internet Archive, like hundreds of US libraries, is a non-profit institution.  Yet a court ruling in mid-August has sided with publishers’ commercial interests to disallow non-profit organisations from lending books.

But there’s a significant catch – the protections afforded to the Internet Archive and all libraries under the first sale doctrine.  The Internet Archive intend to appeal the court’s decision.

The lawsuit hinges on the question of whether e-books are books, subject to the existing laws governing the sale of books, or whether the publishers can redefine e-books as temporary, rental-only media – a new class of unownable goods, like streaming-only films from Disney or subscription-only software from Microsoft. But libraries must have the option to buy and own their books – all their books, including e-books – and own them absolutely.

This threat to the ownership of books is what makes the ongoing publishers’ lawsuit against the Internet Archive politically dangerous and in an altogether different way from earlier challenges and amendments to copyright law. At a time of increasing book bannings and attacks on libraries, public schools and universities, it is not safe for democracy, or for our cultural posterity, to leave an “on/off” switch for library books in the hands of corporate publishers.

In the summer of 2020, Hachette, Penguin Random House, HarperCollins, and Wiley accused the Internet Archive of “mass-scale copyright infringement” because of the way the Internet Archive’s Open Library loans its e-books to patrons. The publishers’ objective had been to forbid the Open Library to loan any of their in-copyright books as e-books.

Last September more than a thousand writers signed an open letter in support of the Internet Archive and digital ownership rights for libraries.

(Related: Publishers Pursue Their Lawsuit Against Internet Archive – What Could It Mean for the Internet and its Most Comprehensive Archive?)

In March, after nearly three years of litigation, US District Court Judge John G. Koeltl sided with the publishers against the Internet Archive. But there’s a significant catch, as we learned a few weeks ago when his final order was filed.

“[On 11 August], the Southern District of New York court issued its final order in Hachette v. Internet Archive, thus bringing the lower court proceedings to a close. We disagree with the court’s decision and intend to appeal. In the meantime, however, we will abide by the court’s injunction,” The Internet Archive said.

For now, the Open Library will have to stop loaning only those e-books for which the publishers are offering their own “competing” e-books for licence. In other words, the order relies solely on the argument that the Open Library is harming the publishers’ revenues from e-books, a distinction that seems to go to the heart of the dispute.

If publishers’ e-book revenues are protected by the extant provisions of copyright law protecting rights holders, then, presumably, readers and libraries should also be protected. The Internet Archive, and all libraries, should have the same protections under the first sale doctrine that have always allowed them to preserve and lend books to readers.

Free societies thrive in a global culture preserved over centuries, a mega culture that today spans a deeply interconnected world by means of the Internet. It’s a worldwide palimpsest of all we can read, hear, see, learn, and experience together, every day. The biggest benefactors and guardians of this mega culture are non-profit libraries, repositories and archives like Wikipedia and the Internet Archive.  But a culture this spectacularly vivid and rich can flourish only in conditions of collaborative freedom, sharing and openness; and that means expanding, not diminishing, access to digital libraries and archives.

The above is extracted from an article titled ‘A Book Is a Book Is a Book – Except When It’s an e-Book’ published by The Nation.

Misguided Ruling

The following is a letter to the editor published in the September/October 2023 issue of American Libraries (pg. 7).

The Hachette v. Internet Archive decision in March is a low point in the battle over the most critical part of the library mission: Providing non-discriminatory, open, modern, and efficient access to materials for library patrons. In fact, it’s a blow to all non-profit educational institutions with a mission to foster access. The court’s flawed analysis has the potential for grave effects on access-based missions in an increasingly licence-mandated world.

Through the Copyright Act, Congress empowered libraries to fulfil their vital societal function by allowing access to their purchased materials. These laws are designed to protect the library mission from the pitfalls of traditional market economics because libraries – unlike any other entity – have a specific mandate to cultivate and share information.

These laws allow libraries to buy a book one time and loan it to their community of readers. Nowhere in the law is there a requirement that libraries must keep repeatedly paying for that book. However. the court erroneously held that the market – comprising expensive, limited, non-negotiated and highly profitable e-book licences – is the default norm in which libraries are forced to participate.

The court Is wrong. Under this flawed analysis, books that libraries have already purchased are unnecessarily restricted from modern lending systems like controlled digital lending (“CDL”). This decision places the library mission at the whim of corporate interests.

The Internet Archive, like hundreds of US libraries, is a non-profit institution. The public’s needs define its mission. By contrast, publishers are for-profit companies that answer to stockholders and corporate boards. Commercial entities should not be able to dictate how and when publicly oriented institutions like libraries can lend their purchased collections.

Library collections are intended to be immune from market forces, not subject to them. Libraries should not have to rent (and re-rent) e-book licences to provide digital access to physical books they have already purchased.

I look forward to the appeal. When publishers sued libraries over reasonable e-reserve policies resulting in a 12-year-long litigation, we did not stop using e-reserves. In the same way, CDL will continue unfettered. The appellate courts and Congress have supported the library mission and will do so again.

Kyle K. Courtney, Cambridge, Massachusetts