Summary Judgment Hearing Coming Up in IA Case
/On October 7, both sides in the Hachette (etc.) vs. Internet Archive (IA) case filed their last round of briefs in the summary judgment phase. As always, Andrew Albanese is keeping a sharp eye on developments.
To summarize, he reports that the publishers’ attorneys have reiterated familiar arguments:
The Internet Archive is a "commercial" actor and not a library
CDL [Controlled Digital Lending} is “a cynical branding exercise designed to repackage industrial-scale copyright infringement as a legitimate enterprise.”
They argue that “the purpose of copyright is to incentivize the creation of new works, authors and publishers—not IA—hold the exclusive right to publish their books in all formats and distribute them via select channels.”
Attorneys for the Internet Archive also repeat their basic positions:
“All CDL does, and all it can ever do, is offer a limited, digital alternative to physically handing a book to a patron. Libraries deciding how to meet their patrons’ needs for digital access to books are not making a choice between paying e-book licensing fees or getting books for free. Libraries pay publishers under either approach.”
Therefore, “librarians can continue to advance the ultimate purpose of copyright: ‘the intellectual enrichment of the public.’”
The Internet Archive has scored a few points over the large publisher points—and it goes without saying that many publishers are not involved and are more sympathetic and fair in pricing to libraries.
The Open Library is non-profit and not “commercial.” Saying that they accept donations, as the plaintiffs have, is simply nonsense. My library, and every library that I know of, accepts donations without being commercial.
This brings up another point that an attorney for the Association for American Publishers (AAP) has said, namely that the Internet Archive is not a library. Nobody working for a publisher lobby group has the moral or professional authority to declare what is or is not a library. The Open Library owns books, legitimately, having paid for them or had them donated (just like my library) and lets the public borrow them without charge (just like my library). How is it not a library?
Both sides have a point about copyright: it does incentivize the creation of works, and it also fosters the intellectual growth and awareness of a literate public. Copyright aims to balance these two positions. The issue then is the extent to which libraries, which have some protections under copyright law, can own a print copy and circulate a digital copy in an “owned to loan” ratio just as they do print works. All the books are in fact physical items that are owned. While the publishers might wish that they could get a cut every time a library circulates a physical item, under copyright they don’t. The publishers and authors have at some point been compensated for the titles that are circulating in CDL. That seems to take care of the incentivizing the creation of works. Libraries should, and must, be able to circulate what they own for the benefit of the public. Yes, this is a simplification, but it is, as the attorneys for the Archive say, what libraries do.
We in libraries can hope that the Internet Archive prevails in summary judgement. We’ll continue to license (though the ability to buy digital at fair prices would be even better!) and to buy print. CDL has great advantages for interlibrary loan and ultimately preservation. It can allow for the reading of books that have not been and never will be digitized by the publishers. never It is a useful tool, but it isn’t the answer for large scale library lending and will never replace our usual lending methods. We’ll know at some point, though this phase of the case might not be sorted for months. Losing would certainly chill efforts for libraries to fulfill their basic and still fundamental mission through a very useful but minor tool.