Today, the Internet Archive (IA) defended its practice of digitizing books and lending those e-books for free to users of its Open Library. In 2020, four of the wealthiest book publishers sued IA, alleging that these types of digital lending were actually “intentional digital piracy” that caused them “massive harm”. But IA’s attorney, Joseph Gratz, argued that the Open Library’s digitization of physical books is fair use and that publishers have yet to prove they were harmed by IA’s digital lending.
“There is no evidence that the publishers lost a dime,” Gratz said during oral argument in a New York district court.
It is up to a federal judge, John Koeltl, to decide whether IA’s digital lending constitutes copyright infringement. During oral argument, Koeltl’s harsh questioning of both Gratz and plaintiff’s attorney, Elizabeth McNamara, suggested that solving this case is a less straightforward task than either side has indicated thus far. Koeltl pointed out that because publishers have the right to control the reproduction of their books, the “core of the matter” was to find out whether IA’s scanning of books violates copyrights by using an already licensed physical book. reproduce and lend without paying additional licensing fees to publishers.
“Does the library have the right to make a copy of the book it otherwise owns and then lend that e-book — which it created without license and without permission — to users of the library?” Koeltl asked Gratz in a tense response to IA’s position that this particular case is pretty much about a library’s right to lend books.
McNamara argued that many libraries pay licensing fees to publishers to lend e-books, and she said this was the market hurt by IA’s digital lending practices. It is IA’s job to prove that this is not the case, or it will risk being held liable and possibly receiving a permanent injunction to stop the allegedly infringing conduct.
While creating his own unapproved e-books prompted the lawsuit, Gratz argued that IA’s digital lending is fair use precisely because it makes copies of the physical books in its Open Library collection. That, he said, is “transformative” fair use, using technologies to transform millions of physical books to improve lending efficiency without infringing on publishers’ or authors’ rights. Gratz said IA avoids the conflict by lending e-books to only one user at a time, without causing harm, because it honors traditional physical library lending, which has been practiced for years without impacting publishers’ bottom line.
The only exception to this one-to-one ratio was when IA launched the “National Emergency Library” for 12 weeks as the pandemic began, offering “a vast universe of scanned books to an unlimited number of individuals at once,” the complaint said. of the accuser. .
During the same period, however, the book publishing business experienced so much demand that revenues rose 12 percent, representing a $3 billion increase in sales by 2021, Publishers Weekly reported. Because publishers profited when the National Emergency Library was made available, Koeltl pushed back McNamara, asking how he could reconcile the increase in profits with charges of damage caused.
McNamara seemed to suggest that publishers would be further enriched if IA didn’t provide unprecedented free, unlimited access to e-books. She also told Koeltl that publishers suing — Hachette, HarperCollins, Penguin Random House and Wiley — are concerned that some libraries are already avoiding e-book licensing fees by partnering with IA and making their own copies. If the court approved IA’s digitization practices and thousands of libraries began digitizing the books in their collections, the entire e-book licensing market would collapse, McNamara suggested.
“Free is an insurmountable competitor,” the publishers’ complaint read.
Ars could not immediately reach the publisher’s Internet Archive or legal team for comment.
Digital rights groups gather to save IA
This particular tension — that publishers should receive separate licensing fees for e-books, even if a library simply wants to offer users the ability to digitally borrow a physical book that the library has already licensed — has seemingly divided stakeholder groups. who have argued for both sides.
Association of American Publishers managing director Maria Pallante told The Wall Street Journal that if IA’s behavior “normalizes, then the Copyright Act becomes useless.” Juliya Ziskina, a policy officer at the Library Futures Institute, told The Journal, “Copyright doesn’t stand in the way of lending a book to one person at a time over the Internet.”
Digital rights groups such as the Electronic Frontier Foundation and Fight for the Future have rallied behind IA, with the former serving as a co-lawyer in the lawsuit and the latter calling the lawsuit a “Battle for Libraries.” A website dedicated to defending IA encourages Internet users and stakeholders to sign a petition in support of IA.
“Any sensible person can see that libraries that continue to lend and preserve books in the digital age are a central public good,” said Lia Holland, campaign and communications director for Fight for the Future, in a press release.
Holland told Ars that more than 11,000 supporters have signed a pledge to “organize for libraries’ rights to own books, regardless of format.”
“It is becoming extremely clear that libraries’ rights to own, preserve and manage their collections enjoy broad public support,” Holland told Ars. “We are encouraged today to see the Internet emerge for the value of both libraries and their traditional role of owning and preserving books that continues into the digital age.”
IA responded to the publisher’s complaint that the e-books it lends to Internet users “have already been bought and paid for by the libraries that own them. The public benefits enormously from the program and rights holders will gain nothing by denying the public this resource.”
Holland told Ars that Fight for the Future was “disappointed to see the judge focus so heavily on the economic impact on publishers during oral arguments – as the court could have replaced ‘print book’ with ‘digital book’ and essentially the same exchange.” For Fight for the Future, supporting IA and other libraries’ ability to lend books digitally is also a critical privacy issue. As reader preferences change, “libraries must be able to offer digital books without their patrons having to fear scrutiny from Big Tech intermediaries such as Amazon and Overdrive, who are profit-motivated to invade the privacy of people who are seeking knowledge. Libraries have historically been an institution. where anyone – whether they want information about religion or gender-affirming care – can learn without fear of punishment. This should not change just because a book is on a screen instead of on paper.’
According to Fight for the Future, Koeltl can decide quickly, or it could take several weeks for a ruling to be made. After that, either side could appeal, and the case could end up in the Supreme Court.
“He could decide in many different ways, including that the big publishers are right and that the Internet Archive should destroy 4 million digital copyrighted books, or even shut down the entire archive of 37 million texts containing the copyrighted books.” , the statement said. Battle for Libraries website reads. “But anyway, the battle is not over yet.”
“Regardless of the outcome of this lawsuit, we know it’s just one step in the long battle to ensure major media and technology companies don’t usurp the traditional role of libraries in the digital age,” Holland told Ars. .
Meanwhile, Congress is looking into licensing fees that publishers are suing IA for protection. Some congressmen do not like publishers and e-book aggregators making individual agreements with libraries, resulting in costly and restrictive contracts that may make it more difficult for libraries to provide the public interest for which they were designed as more readers prefer give to digital lending.
These licensing agreements, with terms set by individual publishers and eBook aggregators, often contain restrictions on lending, transfer, and reproduction, which may conflict with libraries’ ability to lend books, as well as exceptions and copyright restrictions.” Congressmen wrote in letters to nine e-book aggregators and lending platforms. “Under these arrangements, libraries are forced to rent books through very restrictive agreements that resemble leases.”
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