Edboard: We support the Internet Archive

Editorials featured in the Forum section are solely the opinions of their individual authors.

On Saturday, March 25, the Southern District Court of New York handed down a ruling that would severely restrict how libraries can lend and distribute digital texts. In the case Hachette et al. v Internet Archive, four major publishers (including three of The Big Five) are suing the Internet Archive, a non-profit which provides a number of services for accessing books, media, and webpages. According to their mission statement, they aim to provide "Universal Access to All Knowledge."

The four publishers filing suit (Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House) allege that the Internet Archive infringes on authors’ copyright by “scanning print copies … and lending digital copies to users of the defendant's website without the plaintiff's permission.” The Internet Archive responded to this ruling by simply tweeting, “We will appeal.”

The practice in question is Controlled Digital Lending (CDL). Within this system, the Internet Archive and associated libraries can lend out digitized copies of books which they physically possess. However they replicate the physical scarcity of the publication by lending on a one-to-one basis (so if a library has two copies of a book, they will only lend two digital copies at a time). It's relatively uncommon for libraries to lend this way; one of the only major public library systems to use it is the Boston Public Library, which utilized it to digitally distribute old books that were kept in stacks unavailable to the public.

This practice is different from traditional ebook services offered by many libraries, where ebook access is officially licensed by the publisher, and the library must adhere to certain lending terms. The Internet Archive claims a number of benefits to CDL. In addition to simply providing free access to texts, they claim it can benefit authors by generating renewed interest in old works. The Internet Archive cites a case with the Boston Public Library's CDL program where "an author went ahead with a second printing of a book which had been out of print and was rediscovered through the CDL program."

The suit itself was spurred on by the National Emergency Library, a resource the Internet Archive launched at the start of the COVID-19 pandemic. The closure of public libraries in March 2020 meant that millions (650 million by their estimate) of physical print books suddenly became inaccessible. So, the one-copy-one-borrow threshold on books that fell under CDL was removed, allowing anybody to access any book that the Internet Archive had a digitized copy of. This decision was harshly criticized by both the Author's Guild and the American Association of Publishers (AAP). The Author's Guild claimed that the Emergency Library served to "advance a copyright ideology that violates current federal law and hurts most authors" and "trample on authors rights by giving away their books to the world." The American Association of Publishers used the Internet Archive's rather bold test of federal copyright law to take aim at CDL, a policy they had been opposed to since as early as 2019. So on June 1, 2020, they filed a complaint against the Internet Archive, arguing that their actions “constitute willful digital piracy on an industrial scale.” It is from this complaint that we get the case currently under consideration.

The Tartan benefits greatly from the free access of information. Paywalls inhibit our ability to do research by limiting access to scientific and legal publications, and the services offered by the Internet Archive (such as the WayBack machine) are invaluable for archival purposes. We also have a number of literary aficionados on staff (see Novel-Tea this week), who have a personal stake in the outcome of this suit.

It's imperative that our country establishes a strong legal precedent for distributing texts online in the same fashion as physical books. Currently, standard ebook lending confers no meaningful ownership to libraries, which have extremely limited discretion to distribute such texts. They have to comply with copyright laws in ways they don't for physical books, including the publisher being able to dictate the terms of lending. It also makes those texts effectively useless for archival purposes, and it even allows publishers to automatically update the text of ebooks, making the original versions digitally nonexistent.

The digital realm allows publishers to utilize previously inaccessible means of copyright abuse, with which they can fleece consumers and libraries for distributing digital material in ways that would, for physical texts, be completely mundane. For the sake of the unimpeded transmission of knowledge, we don't want to live in a world where every interaction between a user and a digital text creates a means by which publishers can impose a fee; a world where all digital ownership is replaced by a subscription, the terms of which can be altered at any moment according to the whims of the publisher.

Digital texts should, at the very least, operate under a similar legal framework as physical books. We here at The Tartan editorial board support the Internet Archive's appeal and hope that the legality of Controlled Digital Lending will be upheld.