Publishers vs. Internet Archive

Controlled Digital Lending is at the core of the argument

Sep 01, 2022

Controlled Digital Lending (CDL)

In 2020 at the height of COVID the Internet Archives stood up for libraries’ right to provide Controlled Digital Lending: “Copyright law does not stand in the way of libraries’ rights to own books, to digitize their books, and to lend those books to patrons in a controlled way.”

CDL is a respectful and secure way to bring the breadth of our library collections to digital learners. Commercial ebooks, while useful, only cover a small fraction of the books in our libraries. As we launch into a fall semester that is largely remote, we must offer our students the best information to learn from—collections that were purchased over centuries and are now being digitized. What is at stake with this lawsuit? Every digital learner’s access to library books. That is why the Internet Archive is standing up to defend the rights of hundreds of libraries that are using Controlled Digital Lending.

The Internet Archive had asked a federal judge to rule in their favor and end a radical lawsuit, filed by four major publishing companies, that aims to criminalize library lending.1

The motion for summary judgment, filed Thursday in the U.S. District Court for the Southern District of New York by the Electronic Frontier Foundation (EFF) and Durie Tangri LLP, explains that our Controlled Digital Lending (CDL) program is a lawful fair use that preserves traditional library lending in the digital world.

“The publishers are not seeking protection from harm to their existing rights. They are seeking a new right foreign to American copyright law: the right to control how libraries may lend the books they own,” said EFF Legal Director Corynne McSherry. “They should not succeed. The Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves. They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world. Copyright law does not stand in the way of a library’s right to lend its books to its patrons, one at a time.”

Publishers File an Amicus Brief

As another court date in the Internet Archive lawsuit approaches this week, the International Publishers Association has led an amicus brief.2

Four primary member-publishers of the Association of American Publishers filed that first motion for summary judgment against the Internet Archive in a case understood to have international implications because of the reach of Internet connectivity.

The original court action was brought against the Internet Archive in June 2020, when the publishers, three of them among the Big Five, filed a copyright infringement lawsuit against the Internet Archive, in the US District Court for the Southern District of New York.3

The 2020 lawsuit asked the court to enjoin the San Francisco-based Internet Archive’s “scanning, public display, and distribution of entire literary works”—which it has offered to the international public through what the association terms “global-facing businesses” branded the “Open Library” and “National Emergency Library.”

Libraries lend books, and must continue to lend books: Internet Archive responds to publishers’ lawsuit.

At the time of the filing of the publishers’ lawsuit here is how the Internet Archives responded:

The Internet Archive filed our response to the lawsuit brought by four commercial publishers to end the practice of Controlled Digital Lending (CDL), the digital equivalent of traditional library lending. CDL is a respectful and secure way to bring the breadth of our library collections to digital learners.4 Commercial ebooks, while useful, only cover a small fraction of the books in our libraries. As we launch into a fall semester that is largely remote, we must offer our students the best information to learn from—collections that were purchased over centuries and are now being digitized. What is at stake with this lawsuit? Every digital learner’s access to library books. That is why the Internet Archive is standing up to defend the rights of hundreds of libraries that are using Controlled Digital Lending.