by Anthony Paganelli (Western Kentucky University)
In my “Legally Speaking” column of the Against the Grain September 2020 issue, I mentioned the lawsuit against the Internet Archive by Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House on June 1, 2020. This lawsuit was discussed further in Bill Hannay’s article from the same issue, “No Good Deed Goes Unsued!” (Hannay, 2020).
The plaintiff argued that the Internet Archive’s National Emergency Library; which was established on March 24, 2020 following the shutdown of schools and libraries, was in violation of copyright infringement. The publishers based their lawsuit on the Internet Archive’s offer to provide a single digital work for an unlimited number of people regardless that the Internet Archive only had one book. These works were digitized for patrons to view online and the Internet Archive could only lend digital copies depending on the number of physical copies in the collection. In other words, if the digital copy was checked out to a patron, then those requesting the same book would be placed on a waiting list. Therefore, the plaintiffs felt that releasing one digital book to multiple patrons simultaneously was a violation of copyright.
Due to the lawsuit that was filed in the U.S. District Court Southern District of New York, the Internet Archive returned back to their digital lending policy on June 11, 2020. The Internet Archive released a statement noting that the publishers were attacking the concept of library ownership and lending of digital books. They added that the publishers were working to provide materials for students and patrons of the schools and libraries that were shut down due to the pandemic. For example, numerous publishers did provide either free access or reduced financial expenditures for textbooks and other resources for a limited time during the Coronavirus pandemic.
Hannay also stated in the September Against the Grain issue, “Where things go from here is an open question.” Indeed, it was an open question following the Internet Archive’s decision to return to their original policy of digital lending on June 11, 2020. However, the Internet Archive did request and was granted a 30-day extension to reply to the plaintiff’s lawsuit, which was set to end July 28, 2020. This was also in part due to the publishers continued efforts to seek statutory damages against the Internet Archive, which included a demand for a jury in this case.
Prior to this lawsuit, libraries across the nation released a statement on March 13, 2020 to identify that “Fair Use” was to be a major legal issue as they tried to support students and educators during the pandemic that shutdown schools and libraries. Following the lawsuit, the Association of Research Libraries (ARL) encouraged the publishers to drop the lawsuit through the statement, “As universities and libraries work to ensure scholars and students have the information they need, ARL looks forward to working with publishers to ensure open and equitable access to information. Continuing the litigation against IA (Internet Archive) for the purpose of recovering statutory damages and shuttering the Open Library would interfere with this shared mutual objective.” (Aiwuyor, 2020).
On July 27, 2020, the Internet Archive had their opportunity to make their statement regarding the lawsuit through their 28 page brief filed in the U.S. Southern District Court of New York. In the brief, the Internet Archive addressed the publishers’ 53 page suit that was filed against them on June 1, 2020. The Internet Archive reiterated the purpose of their service, which is to provide print books through “Controlled Digital Lending.” They noted that they provide digital content securely that was the same as the publishers that release digital content. Furthermore, the Internet Archive described the purpose of establishing the National Emergency Library.
In the Preliminary Statement of the brief, Internet Archive stated that their Controlled Digital Lending platform was within the regulations of digital lending that is used by publishers that sell digital books. The Internet Archive claimed that they adhere to the own-to-loan basis for their digital collection and their digitization helps preserve numerous print books. The statement also noted that libraries have purchased over a billion dollars to publishers for print books. The Internet Archive recognized their digital collection was approximately 1.3 million, which is available to patrons based on the same borrowing system of one patron to loan one book at a time.
The Internet Archive described the purpose of the National Emergency Library, “During the early days of the COVID-19 crisis, in response to urgent pleas from teachers and librarians whose students and patrons had been ordered to stay at home, the Internet Archive decided to temporarily permit lending that could have exceeded the one-to-one owned-to-loaned ration. With millions of print books locked away, digital lending was the only practical way to get books to those who needed them. The Internet Archive called this program the National Emergency Library and planned to discontinue it once the need had passed. Twelve weeks later, other options had emerged to fill the gap, and the Internet Archive was able to return to the traditional CDL approach.”
Of course, the Internet Archive stated in the brief that the publishers’ “are not entitled to statutory damages,” which is based on the 17 U.S.C. § 504(c) Remedies for infringement: Damages and profits. They also requested relief and dismissal from the lawsuit in its entirety, as well as a trial by jury. While the brief replied to the publishers’ lawsuit and the Internet Archive did return to their original checkout policy, the lawsuit continues.
On August 20, 2020, both parties got together to discuss the lawsuit, but they were unable to reach a settlement. After their discussions, they filed a joint report to the court on August 28, 2020 based on the Federal Rule of Civil Procedure Rule 26. This report outlined the discovery plan for both parties between September 11, 2020 to September 10, 2021. In addition, the publishers have until November 1 to add more works to the lawsuit and December 1 to amend the complaint. Following the December 1 possible amendments, the Internet Archive would have 21 days to respond. Over the next year, both parties will prepare for possible hearings in November 2021.
Even though, there is really not much to report on this lawsuit at this time as both parties are preparing for the November hearings, this lawsuit is bringing to the foreground the relationships between libraries and publishers as the increase need for digital content continues to be an issue. As noted by Hannay, “Where things go from here is an open question.” This open question could very well be, “Is Controlled Digital Lending legal under the U.S. Copyright Law?” Of course, numerous other questions will arise as this lawsuit moves forward. Until there is a ruling or resolution, it will be interesting as schools and libraries continue to seek of ways to access digital content.
Aiwuyor, J. (2020). Association of Research Libraries urges end to litigation against Internet Archive. Association of Research Libraries. Retrieved from https://www.arl.org/news/association-of-research-libraries-urges-end-to-litigation-against-internet-archive/.
Albanese, A. (2020). Publishers, Internet Archive propose yearlong discovery plan for copyright. Publishers Weekly. Retrieved from https://www.publishersweekly.com/pw/by-topic/digital/copyright/article/84228-publishers-internet-archive-propose-yearlong-discovery-plan-for-copyright-case.html.
Ennis, M. (2020). Publishers’ lawsuit against Internet Archive continues despite early closure of Emergency Library. Library Journal. Retrieved from https://www.libraryjournal.com/?detailStory=publishers-lawsuit-against-internet-archive-continues-despite-early-closure-of-emergency-library.
Hannay, B. (2020). No deed goes unsued! Against the Grain, 32(4), 52.
Hachette Book Group, Inc., HarperCollins Publishers, LLC, John Wiley & Sons, Inc., and Penguin Random House, LLC. v. Internet Archive. Case 1:20-cv-04160-JGK.
Paganelli, A. (2020). Issues for Libraries Regarding Covid-19. Against the Grain, 32(4), 48-50.