Book publishers struggle to prove Internet Archive hurt their sales
Today, the Internet Archive (IA) defended its practice of digitising books and lending those e-books for free to users of its Open Library.
In 2020, four of the wealthiest book publishers sued IA, alleging this kind of digital lending was actually “willful digital piracy” causing them “massive harm”. But IA’S lawyer, Joseph Gratz, argued that the Open Library’s digitisation of physical books is fair use, and publishers have yet to show they have been harmed by IA’S digital lending.
“There is no evidence that the publishers have lost a dime,” Gratz said during oral arguments at a New York district court.
It’s up to a federal judge, John Koeltl, to decide if IA’S digital lending constitutes copyright infringement.
During oral arguments, Koeltl’s tough questioning of both Gratz and the plaintiff’s attorney, Elizabeth Mcnamara, suggested that resolving this matter is a less straightforward task than either side has so far indicated. Koeltl pointed out that because publishers have a right to control the reproduction of their books, the “heart of the case”, was figuring out whether IA’S book scanning violates copyrights by reproducing an already licenced physical book and lending it without paying more licencing fees to publishers.
“Does the library have the right to make a copy of the book that it otherwise owns and then lend that e-book — which it has made without a licence and without permission — to patrons of the library?” Koeltl asked Gratz as a tense pushback to IA’S stance that this particular case is just about a library’s right to loan out books.
Mcnamara argued that many libraries pay licencing fees to publishers to lend ebooks, and she said this was the market harmed by IA’S digital lending practices. The burden is on IA to prove that’s not the case, or else it risks being found liable and potentially getting hit with a permanent injunction to stop the alleged infringing behaviour.
Although creating its own unsanctioned e-books triggered the lawsuit, Gratz argued that IA’S digital lending is fair use, precisely because it makes copies of the physical books in its Open Library collection. That, he said, is “transformative” fair use, utilising technologies to transform millions of physical books in order to improve the efficiency of lending without encroaching on publishers’ or authors’ rights.
Gratz said that IA avoids the conflict by only lending out e-books to one user at a time, causing no harm because it honours traditional lending in brick-and-mortar libraries that has been practiced for years without impacting publishers’ bottom lines.
The only exception to this one-to-one ratio was when IA launched the “National Emergency Library” for 12 weeks when the pandemic started, offering “an enormous universe of scanned books to an unlimited number of individuals simultaneously”, the plaintiff's complaint said.
During this same time, however, the book publishing industry experienced so much demand that revenues rose by 12%, amounting to a US$3 billion spike in sales by 2021, Publishers Weekly reported. Because publishers profited when the National Emergency Library was made available, Koeltl pushed back on Mcnamara, asking how to reconcile the surge in profits with allegations of harm caused.
Mcnamara seemed to suggest that publishers would have been further enriched if not for IA providing unprecedented free, unlimited e-books access. She also told Koeltl that publishers suing — Hachette, Harpercollins, Penguin Random House and Wiley— are concerned that there are already some libraries avoiding paying ebook licencing fees by partnering with IA and making their own copies. If the court sanctioned IA’S digitisation practices and thousands of libraries started digitising the books in their collections, the entire e-book licencing market would collapse, Mcnamara suggested.
“Free is an insurmountable competitor,” the publishers’ complaint said.
Ars Technica could not immediately reach the IA or the publishers’ legal team for comment.
This particular tension — that publishers should receive separate licencing fees for e-books even if a library simply wants to give patrons the option of digitally borrowing a physical book that the library has already licenced — is what has seemingly divided stakeholder groups who have advocated for both sides.
A chief executive of the Association of American Publishers, Maria Pallante, told The Wall Street Journal that if IA’S conduct “is normalised, there would be no point to the Copyright Act”. While a policy fellow with the Library Futures Institute Juliya Ziskina told the journal: “Copyright law doesn’t stand in the way of lending a book to one person at a time via the Internet.”
Digital rights groups like the Electronic Frontier Foundation and Fight for the Future have rallied behind IA, with the former serving as co-counsel on the lawsuit and the latter dubbing the lawsuit a “Battle for Libraries”. On a website dedicated to defending IA, internet users and stakeholders are encouraged to sign a petition supporting IA.
“Any rational person can see that libraries continuing to loan and preserve books in the digital age is a core public good,” Lia Holland, Fight for the Future’s campaigns and communications director, said in a news release.
Holland told Ars Technica that more than 11 000 supporters have signed a pledge to “organise for the rights of libraries to own books, regardless of format”.
“It’s becoming extraordinarily evident that the rights of libraries to own, preserve and curate their collections have broad public support,” Holland told Ars Technica. “We are heartened today to see the internet showing up for the value of both libraries and their traditional roles of owning and preserving books continuing into the digital age.”
IA responded to the publishers’ complaint that the e-books it lends to internet users “have already been bought and paid for by the libraries that own them. The public derives tremendous benefit from the programme and rights holders will gain nothing if the public is deprived of this resource”.
According to Fight for the Future, Koeltl could decide quickly, or it may take a few weeks to issue a judgment. After that, either side could appeal, and the case could end up before the US Supreme Court. — Ars Technica.