The legal battle over the Internet Archive’s Open Library has drawn passionate responses from people involved in the creation, publication, and distribution of books. As I’m writing this, the court of the Southern District of New York has ruled that putting unauthorized digitized versions of copyrighted books on the open Internet is a violation of copyright, and the Internet Archive is appealing the decision.
Publishers Hachette, Penguin Random House, Wiley, and HarperCollins argued that distributing books through the Open Library violated their copyrights. The Internet Archive has declared its appeal is “a necessary fight if we want library collections to survive in the digital age.” SFWA has stated that the Open Library “is not library lending, but direct infringement of authors’ copyrights.” The debate pits the rights of authors and publishers against the aims of preservation.
Full disclosure: I have a foot in both camps. I write for money, and I’ve worked for the Harvard University Library in digital preservation and self-published a book on the subject.
The Internet Archive’s model differs in some important ways from the way public and academic libraries lend e-books. When you borrow an e-book from a public library, it has gotten a license from the publisher to distribute it in electronic form, and the publisher supplied the digital file. The Internet Archive scanned printed books which it purchased and hasn’t otherwise paid or notified the publishers or authors. In both cases, the reader gets a copy that is restricted by Digital Rights Management (DRM), making it readable only for a limited period. Standard forms of DRM are easy to circumvent with popular, legally available software. In principle, the Internet Archive allowed only as many copies to be “in circulation” as it had physical copies. In fact, readers could easily keep their “borrowed” copies permanently, and I’m sure many have.
The Internet Archive claimed that its practice constitutes fair use and transformative work under copyright law. The court didn’t buy this. Copying an entire book is seldom considered fair use, and the law doesn’t regard digitization as transformation. (Transformative work, as I understand it, means using part of a work in journalism, commentary, or parody.) I’ve never been to law school, but I’d have been very surprised if the Internet Archive had prevailed in court, and I doubt that the appeal will significantly change the outcome.
The ability to create digital copies of books at almost no cost creates problems for which there hasn’t been a satisfactory solution. Libraries now have large parts of their collection only in digital form, and access is more restricted than it is to physical books. My local library lets me borrow just four items a month through Hoopla; increasing the number would require a more expensive license. That’s annoying when I’m doing research and want to look at a lot of books on a subject.
Digital lending is inherently a difficult problem. You can’t take back the bits that you’ve sent and guarantee that they weren’t copied. Perhaps a different model is needed. Shortening the length of copyright from near-century terms would help. Whatever might help, effectively giving away authors’ works without their consent is no solution. I have to consider the court’s decision the right one and the best available one in the existing legal framework.
At the same time, I’m concerned the costs of the lawsuit could hurt the good work the Internet Archive does. It’s best known through the Wayback Machine, its online archive of old Web pages. I’ve found it very useful in my current project updating Tomorrow’s Songs Today. Many links in the 2015 edition no longer work. Sometimes the material has moved, but in other cases it’s no longer available at all. I’ve been able to salvage some of those links by changing them to Internet Archive URLs. If the organization has to pay damages, or if it’s sunk its financial reserves into the legal fight, that could hamper the Wayback Machine’s future.