Thanks to Gary Price of Infodocket for an early (near immediate) heads-up last week that the Hachette et. a. vs Internet Archive (IA) lawsuit is going to oral arguments in summary judgement.
Andrew Albanese has provided his usual good summary of events so far in Publishers Weekly. Start here if you are not familiar with all aspects of this nearly three-year-old case.
The arguments will begin on March 20 and could determine who wins. Cases of this sort are often initially decided in summary judgement, with one side or the other being declared to have the stronger case. In this instance, an appeal is almost certain, especially if the Internet Archive wins. With billions in corporate might behind them, and with licensing for every use rather than individual ownership of books (and practically everything else!) being a corporate dream, the (not-your-grandparents) publishers surely won’t stop with a loss.
Plantiffs in the case argue that “Since 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. With briefing completed, the undisputed facts and settled law lead to the inexorable conclusion that IA’s practice of CDL [Controlled Digital Lending] is not fair use.” They argue that the IA is a commercial entity and would turn “copyright law upside down by allowing IA to convert millions of physical books into ebook formats and distribute them worldwide without paying rightsholders.”
The Defendants reply that the “the Internet Archive’s digital lending is a noncommercial service that expands the utility of physical books; and (2) that digital lending has not harmed Plaintiffs’ ebook rentals. All that 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 ebook licensing fees or getting books for free. Libraries pay publishers under either approach—but digital lending lets libraries make their own decisions about which books to circulate physically, and which to circulate digitally instead. That choice means that librarians can continue to maintain permanent collections of books, to preserve those books in their original form for future generations, and to lend them to patrons one at time, as they have always done. Above all, it means librarians can continue to advance the ultimate purpose of copyright: “the intellectual enrichment of the public.”
It is telling that both sides point to different visions of copyright’s purpose. Both sides are correct. Copyright does aim to reward creators but also “to promote the progress of science and the useful arts—that is—knowledge.”
The judge will need to determine if isolating physical copies and circulating the texts digitally (so that there is never more copies in circulation than the library legitimately owns) is a fair use or violation of copyright.
From a library perspective, the case is all but open and shut.
No doubt the publishers disagree.
The Internet Archive is a non-profit. It does not sell the books or charge for access. It and its partners own a print version of the books being loaned (disclosure—my library is an Open Library partner). No digital copy is circulated that could not have a print copy circulated in its stead. The creators/publishers have at some point been paid for every copy. Where in copyright does it say that the rights owners have to be paid for every use or, in the case of libraries and the Big 5, charged so much more for a digital license than for print that it is clear that copyright is being used to milk the public coffers in ways that print does not allow? Is it likely that Congress ever intended for libraries’ right to share digital to disappear every two years or 26 circulations, so that we must constantly relicense at usurious rates or lose access?
CDL does what libraries have long done: share and preserve content to foster life-long learning—”that is, knowledge. It isn’t and never has been for free. We pay. Authors and publishers benefit. Might they wish every read meant a sale? No doubt. But it has never worked that way before digital, suggesting that it is long past time to revise copyright laws for the digital age. CDL is one way libraries—or at least large and well-funded ones—can support our traditional mission now. Let us see what the judge says. But CDL is too valuable a tool for sharing and preservation for libraries—and the public who use us—to lose.
Thank you to the Internet Archive for fighting to keep access to books in the face of corporate overreach.
