Background
On 24 March 2020, the Internet Archive began allowing users to download and read almost 1.4 million digital books simultaneously. Normally, users can download books from the website using digital rights management (DRM) tools that replicate some of the limitations of an ordinary library, such as allowing access to one user at a time. The Archive claimed that the expanded service was being introduced due to the closure of public libraries during the Covid-19 pandemic and in response to enquiries from educators. It initially reported that the service would continue until the end of June 2020 or the end of the pandemic in the US, whichever came first. However, in a recent statement, the Archive said the service would close at the end of June due to a lawsuit filed by four commercial publishers.
The Archive's 'National Emergency Library' was met with immediate criticism by authors and publishing industry groups around the world, including the International Publishers Association (IPA). The IPA released a statement to coincide with World Intellectual Property Day on 26 April, highlighting the "importance of copyright during the pandemic".
The copyright complaint was filed in early June in the Southern District of New York by Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc. and Penguin Random House LLC, who collectively represent many of the world's bestselling authors. It is alleged that the Internet Archive is engaged in "wilful mass copyright infringement" and that "[w]ithout any license or any payment to authors or publishers, [the Internet Archive] scans print books, uploads these illegally scanned books to its servers, and distributes verbatim digital copies of the books in whole via public-facing websites".
The claim notes that publishers have supported public libraries, but alleges that the Internet Archive's activities are "nothing like those of public libraries... it is in fact a highly commercial enterprise with millions of dollars of annual revenues, including financial schemes that provide funding for IA's infringing activities". It states that "IA does not seek to "free knowledge"; it seeks to destroy the carefully calibrated ecosystem that makes books possible in the first place—and to undermine the copyright law that stands in its way." The publishers seek a declaration of wilful copyright infringement, an injunction stopping the Internet Archive and associated parties from infringing their copyrights and ordering unlawful copies to be destroyed, damages, an account of profits and costs.
Founder and Chairman of the Archive, Brewster Kahle, initially blogged that he was 'disappointed', stating that the Archive "acquires books and lends them, as libraries have always done ... Publishers suing libraries for lending books, in this case protected digitized versions, and while schools and libraries are closed, is not in anyone's interest." According to its website, the Internet Archive was founded in San Francisco in 1996 with the aim of archiving the Internet because, unlike newspaper content, Internet websites were not being saved anywhere. Its 'Wayback Machine' is well known to trade mark lawyers for its usefulness in gathering evidence going back several years.
Controversially, the Archive's mission has expanded in recent years to include the digitisation of numerous other types of works, including 20 million books and texts, 4.5 million audio recordings, including live concerts, and even movies and television recordings. A cursory search by the authors of this piece located books by Neil Gaiman and J.K. Rowling, a recording of Muse playing at Wembley Stadium and a 1965 episode of Coronation Street. This is in contrast to other digital libraries, such as Project Gutenberg, founded in 1971, which uploads only public domain works after a process of clearing copyright. The website claims that the Archive scans 1,000 books per day in 28 locations around the world, including the United Kingdom and China.
Commentary
Copyright systems aim to balance the public interest in access to knowledge with the economic and moral rights of creators. The Internet Archive dispute reflects the debate about how best to do so in the digital age. Although copyright is largely harmonised by a number of international treaties dating as far back as 1886, there are still differences in how copyright systems can be implemented around the world including the extent to which digital lending and archiving is permitted.
The US has a flexible doctrine of 'fair use' that allows some use of copyright material without the permission of the copyright owner in some circumstances (we consider the position in the UK here in part 2). Some academics in the US have drafted a Position Statement on Controlled Digital Lending that argues the US doctrines of fair use and exhaustion support controlled digital lending schemes. The Archive is a signatory, and this may indicate the types of arguments it is likely to raise if the suit continues. However, U.S. Senator Thom Tillis, chairman of the Senate Judiciary Committee Subcommittee on Intellectual Property, has questioned the legal basis. In a letter to Kahle, he wrote "I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act. Indeed, I am deeply concerned that your "Library" is operating outside the boundaries of the copyright law that Congress has enacted and alone has jurisdiction to amend."
We await the outcome of the copyright claim in the US with interest. It will also be interesting to see whether the Archive decides to bring a claim against any of its users if it loses the claim. Although the Archive states that it takes part in the scanning and digitisation of books available on the website, it also allows third parties to upload material. The Archive's website states that "users make use of the Internet Archive's Collections at their own risk and ensure that such use is non-infringing and in accordance with all applicable laws." According to its 'Terms of Use, Privacy Policy, and Copyright Policy', users are granted access "for scholarship and research purposes only". Users agree to abide by "all applicable laws and regulations, including intellectual property laws" and to "indemnify and hold harmless the Internet Archive and its parents, subsidiaries, affiliates, agents, officers, directors, and employees from and against any and all liability, loss, claims, damages, costs, and/or actions (including attorneys' fees) arising from your use of the Archive's services, the site, or the Collections". These terms mean that there is the potential for the Internet Archive to pursue users who have uploaded copyright material without permission, or who could be deemed to be using material other than for scholarship and research purposes. However, given the costs of pursuing private individuals and the number of third parties uploading materials, it seems doubtful that the Internet Archive will pursue this course of action.
Originally published by Marks & Clerk, July 2020
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