A senseless lawsuit against the Internet Archive

By Marie Lebert, 24 July 2021.

[French version in ActuaLitté]

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When I heard about the lawsuit for copyright infringement launched on 1st June 2020 in the US by four major publishers (Hachette, Penguin Random House, Wiley, HarperCollins) against the Internet Archive for its Open Library, I couldn’t believe it. I thought this was a bad dream, that turned into a nightmare with the lawsuit scheduled for trial from 12 November 2021.

I briefly thought we were back in the 1990s, when publishers were fearing digital piracy and copyright infringement while threatening a few pioneers with lawsuits. But we are in 2021.

The Internet Archive was founded by Brewster Kahle in 1996. It created the Open Library in 2006. The Open Library is one of the many activities of the Internet Archive. The Open Library was set up to create a web page for each book ever published, with a link to its digital version when possible. It became a free global lending digital library open to everyone around the world.

The Open Library includes books from public domain (2.5 million) and copyrighted books (1.4 million), like any library. The ebooks are scans from printed books owned by the Internet Archive through purchase or donation. The scans are image files in PDFs. Many books are out of print and don’t have a commercial ebook version.

Public domain books are freely downloadable. Copyrighted books (published between 1925 and five years ago) can be borrowed on a one-to-one basis for 14 days, with up to 10 books per patron. These books mostly support education and scholarship. “The majority of books are borrowed for less than 30 minutes. (…) 90% of the books borrowed were published more than 10 years ago, two-thirds were published during the 20th century”, explains the Internet Archive.

The legal basis is “controlled digital lending (CDL) that has been around for a decade. (…) The library loans out a digital version of a book it owns to one reader at a time, and prevents further redistribution.” DRM (Digital Rights Management) software controls the lending period, and prevents the reader from making copies. Controlled digital lending (CDL) is used by many digital libraries, and criticised by many publishers.

The Internet Archive has a heart, and knows how to use it.

During the pandemic, because all the physical libraries were closed and their digital libraries swamped with requests for loans on a one-to-one basis, and because all the schools, universities and training centres were closed, the Open Library launched the National Emergency Library (NEL) on 24 March 2020 for three months, until 30 June.

It suspended its waiting list to allow multiple people — instead of one person — to access the PDF versions of copyrighted books. From the beginning, authors and rights holders could opt out by sending a book removal request that was processed quickly.

The purpose of the National Emergency Library (NEL) was “to provide books to support emergency remote teaching, research activities, independent scholarship, and intellectual stimulation while universities, schools, training centres, and libraries are closed.”

At the time, according to UNESCO, “91% of the world’s learners were impacted by school closures, 1.6 billion learners were cut off from their classrooms, 188 countries had shut down schools nationwide, 390 million students were impacted, and 90% of the world’s student population was affected by school closures.”

In the meantime, a librarian working in an academic medical centre in New Jersey could find in the NEL the basic life support manuals needed by frontline medical workers, that were impossible to find anywhere else. This is one example among many others. The Internet Archive received “hundreds of stories from librarians, authors, parents, teachers, and students about how the NEL has filled an important gap during this crisis.“

All of us could go on reading and studying despite lockdowns, illnesses, and hard times to make ends meet. The NEL saved our daily thirst for knowledge and even our sanity during these hard times. We don’t have the money to buy piles of books at Amazon.com and the likes.

Because of the copyright infringement lawsuit launched by four major publishers on 1st June 2020, the National Emergency Library (NEL) closed its doors on 16 June instead of 30 June 2020 as planned first. The Open Library resumed its loans on a one-to-one basis. And the lawsuit is proceeding in order to have all the copyrighted books removed from the Open Library.

From what I understood, these publishers would like the ebooks to be licensed directly from the publisher, like in standard digital libraries, with publishers — and by extension authors — getting paid for their work without losing sales, and with files with an embedded code which makes it impossible to be used by more than one patron at one time.

But many books in the Open Library are out of print with no commercial ebook version, and the loans to no more than one patron at one time triggered very long waiting lists in standard digital libraries, that were swamped by requests during the pandemic, hence the National Emergency Library (NEF) for three months during dire times.

These publishers say they defend authors. But only a small percentage of the book price goes to the author as author royalties. Most authors and translators are poor, and need a day job to pay the bills. Why not give authors and translators higher royalties on books bought by people who can afford to buy books, during the pandemic and after the pandemic? Why are these major publishers so rich while authors and translators are so poor, with a few exceptions? Why can they afford expensive lawyers while authors and translators live below poverty level?

Some authors who support the lawsuit want their readers to buy their books instead of borrowing them in the Open Library. To sue a global free digital library won’t make readers buy more of their books. These authors will lose the readers who can’t afford to buy their books, and the readers from other countries.

These authors also say they have had a hard time during the pandemic, and they need to sell more books. Everyone understands. Everyone has had a hard time during the pandemic. Who hasn’t had a hard time during the pandemic, except Amazon? But many people have more urgent expenses than buying books.

Instead of a partnership everyone is looking forward to, the copyright infringement lawsuit is scheduled for trial from 12 November 2021, with potential heavy fines, and the wish to suppress all the copyrighted books from the Open Library. Huge legal costs will be spent while so many authors, so many translators and so many students struggle.

The Internet Archive has repeatedly asked these publishers to work with its team and not against it, and to discuss a partnership to serve readers, libraries and booksellers. These publishers don’t seem interested.

The Internet Archive was the first to ask the patrons of the Open Library to buy books if they could in order to support publishers, authors and booksellers during the pandemic, and to borrow books if they couldn’t. These publishers don’t mention it.

The Internet Archive works for the public good, for the general public, for librarians, for students, for teachers, for elderly people, for people with print disability, for researchers, for authors, for translators, for everyone.

The Internet Archive has been here for 25 years. It knows about its trailblazing power to promote reading for all and education for all. The movement it has created is unstoppable. Why a lawsuit instead of a partnership?

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Copyright © 2021 Marie Lebert