The entire world is struggling to deal with the COVID 19 pandemic, and even in the favorable scenarios, facing a protracted recovery. Among the many casualties of the pandemics are the closing of schools and restrictions of access to libraries.
Individuals, organizations, business and governments are looking for ways to respond to the pandemic. Some of the responses have been helpful, while others have made things worse. Among the bad responses is the lawsuit asking a federal judge to restrict online access to the more than million books available to the public from the Internet Archives. The suit alleged that the Internet Archives was engaged in “willful mass copyright infringement.”
The plaintiffs in the lawsuit are four giant multinational publishing conglomerates, the Hachette Book Group, Inc. (owned by Hachette Livre, the largest publishing company in France, and the third largest trade and educational publisher in the world), HarperCollins Publishers LLC (owned by Rupert Murdoch’s News Corp), John Wiley & Sons, Inc. (a Wiley family member still chair’s the board), and Penguin Random House LLC (owned by Bertelsmann, a German multinational conglomerate based in Gütersloh, North Rhine-Westphalia, Germany, controlled by the Mohn family). These four firms, encouraged by the Author’s Guild, used the lawsuit as leverage to shut down the Internet Archive’s National Emergency Library, which just weeks earlier was created to expand access to books no longer available from thousands of schools and libraries that were shut down over the pandemic.
Since 1996 the Internet Archive, a not for profit organization receiving grants from diverse sources (see here: https://archive.org/about/) has been building a “digital library of Internet sites and other cultural artifacts in digital form”. It provides free access to researchers, historians, scholars, the print disabled, and the general public. It has maintained an Open Library since 2006, allowing users to check out millions of books acquired by Internet Archive in paper, and the copied in a digital format, primarily in a PDF files, that are encrypted have technical protection measures, to control (limit) access, so that usage is equivalent to viewing or borrowing the paper copy of a book, from a walk-in library.
The Internet Archive practice is known as Controlled Digital Lending (CDL). Before the pandemic, only one user at a time would have access to a book owned by the Internet Archive in paper formats, either through 60 minute checkouts, or for 14 days. The book is not formatted for popular ebook readers, bit rather is read on a computer screen or pdf reader. In other words, it is not a replacement for an ebook you get on Amazon to read on a kindle for example.
On March 24, 2020, more or less when all schools and libraries closed due to the pandemic, the Archive decided to suspend their strict lending practices –one book on the “shelf” and one copy only could be borrowed–to allow borrowing of more copies of scanned books for those who cannot access their local libraries and to ensure than students could access any reading and library materials.The suspension of the strict CDL rules were temporary and scheduled to end June 30, 2020 or at the end of the national emergency. However, the National Emergency Library had to “close” early and stop providing scanned books when four publishing giants threatened litigation for copyright infringement. The Internet Archive shut down the expanded access before the lawsuit was even filed with the court, but the publishers were not satisfied, and are seeking astronomical damages, and challenging even the pre-pandemic practices of one book one reader.
What is at stake here? The Internet Archives itself could be crippled or shut down as a result of the litigation, eliminating not only its (pre-pandemic) open library program, but other services such as the Internet Wayback Machine, a critical Internet resources that archives older copies of millions of web pages, allowing researchers to find information when the original URLs no longer work, either because the web pages no longer exist or a new content management system has changed (broken) the original links. In our case, a combination of errors by a webpage consultant and our ISP broke links to 15 years of the KEI web pages, and the wayback machine was used to recover much of this content.
Secondly, the generation of school children who will or will not have access to all the readings they need to become learned and informed citizen (as well as successful literate educated adults) and thirdly, and this is somewhat difficult to explain in just a few words, the future of CDL and many print books that will never be read, used or even found!
Writers, authors and really anyone who loves to read and learn, will miss these opportunities a long time after the pandemic. But for now, let’s make sure that the pandemic does not also destroy access to knowledge because four publishing houses are using it to ensure that any access to reading depends on their permission to do so whether a book has been bought already or not.
The April 28, 2020 Congressional Services Report “COVID-19 and Libraries: E-Books and Intellectual Property Issues” described some of the problems and the laws that are involved.
The report also includes an interesting question as to why libraries are charged double or more for the same e-books via licensing agreements and how maybe it is the right time to amend the copyright law to adapt, if not to the digital world we live in, but at least to adapt to this national emergency.
Another option for Congress could be to amend the copyright laws to introduce a digital version of the first sale doctrine. For example, Congress could enact legislation providing that when users receive the right to read an e-book or other digital media file for personal use, they also receive the right to re-sell or otherwise distribute that e-book. Congress considered the possibility of a “digital first sale doctrine” when it enacted the Digital Millennium Copyright Act (DMCA) in 1998 by ordering the Register of Copyrights to report on “the relationship between existing and emergent technology and the operation” of § 109. The report recommended not enacting such a digital first sale doctrine to allow the market to develop, and at that time Congress took no further action. Congress could now reexamine the market and determine whether it has matured sufficiently and in a manner that would warrant further action.
Congress could also amend the copyright laws to provide limited copyright immunity for library e-book lending, while stopping short of a full digital first sale doctrine. For example, 17 U.S.C. § 110 (§ 110) exempts certain performances and displays of copyrighted works from infringement liability (for example, when a religious work is performed “in the course of services at a place of worship or other religious assembly”) and 17 U.S.C. § 108 allows “a library or archives” to make a limited number of copies, in certain circumstances, for archival purposes without infringing the copyright. Congress could consider broadening § 108 or § 110 by adding protection from infringement when a library makes a copy of an e-book for the purposes of or as incidental to lending. Such an amendment might require additional action to shield libraries from breach of contract actions, assuming that a library’s license with the publisher bars copying. Congress could render any legal changes temporary by, for example, having them expire on a particular date or when the current national emergency ends.
On July 28, 2020, the Internet Archive has filed its response to the lawsuit here: https://archive.org/details/internet-archive-answer