The Internet Archive, which runs the Wayback Machine, is facing a significant legal challenge from book publishers who are accusing it of copyright infringement for digitising and lending books without permission. The case revolves around the Internet Archive’s Controlled Digital Lending (CDL) programme, which allows users to borrow digitised copies of books in its collection. Publishers argue that this constitutes copyright infringement, while the Internet Archive contends it is a fair use under copyright law, emphasising public access to knowledge.
Background of the Internet Archive, CDL, and Wayback Machine
Founded in 1996 by Brewster Kahle, the Internet Archive is a nonprofit digital library that aims to provide “universal access to all knowledge”.
It offers free access to collections of digitised books, movies, music, websites, and software. One of its services is the CDL programme, which is designed to allow libraries to digitise physical books they own and lend out digital versions on a one-to-one basis—meaning if a library lends a digital copy, the corresponding physical copy is unavailable for borrowing.
The CDL model rests on the premise that lending a digital copy of a book is the digital equivalent of lending a physical one, thereby not exceeding the rights of the library under the first-sale doctrine. However, publishers contend that the distribution of these digital copies without additional licensing fees infringes upon their copyrights.
The Internet Archive not only acquires physical books, digitises them, lends them out, or offers them for download, but it has also been dedicated to preserving web pages since 1996. The platform boasts that users can access over 866 billion archived web pages via its own search tool. Starting in 1996, it began archiving the Internet, a medium that was just starting to gain traction. Unlike newspapers, which capture ephemeral content, no one was preserving web content. Now, with more than 28 years of web history accessible via the Wayback Machine and partnerships with over 1,200 libraries and other collaborators through the Archive-IT programme, the information is accessible to the user.
Internet Archive has also allowed users to contribute to the archiving process at no cost. Additionally, individuals could reach out to the platform to make their own work publicly available, further expanding the archive's scope.
The Wayback Machine is a user-friendly and free tool for accessing archived web content. It allows users to enter a URL or keywords and search for the archived content. Users could find archived content such as old websites, earlier versions of existing websites, deleted social media posts, and paywalled articles. They could also access content blocked or censored in their area.
The Wayback Machine showed how often Internet Archive content ‘crawled’; therefore, allowing users to select ‘snapshots’ from different time periods. The service could be patchy sometimes, and not all content is perfectly saved. Broken links, missing media, and pages that sometimes would not load were common issues.
Despite its limitations, the Wayback Machine has been useful for research and accessing information sources. However, users have to be cautious when relying on the data obtained, as it may have been outdated or inaccurate.
The Case
In 2020, publishers Hachette, HarperCollins, Wiley, and Penguin Random House sued Internet Archive, and in 2023, Judge John G. Koeltl ruled in favour of the publishers, issuing an order against Internet Archive on March 24, 2024. The court order noted that Internet Archive’s website provides millions of public domain e-books for free; however, it further hosts 3.6 million copyrighted books, including 33,000 titles owned by the plaintiffs, who are the publishers in the lawsuit.
Traditional publishers objected to Internet Archive’s ‘National Emergency Library’ (NEL) initiative, which was launched during the COVID-19 pandemic to expand access to e-books while physical libraries were closed, citing copyright concerns. According to the 2023 court order, during the National Emergency Library (NEL) initiative, Internet Archive suspended its usual one-to-one lending ratio and had allowed up to 10,000 simultaneous users to access each e-book.
In general, Internet Archive employs ‘controlled digital lending’ to restrict e-book access; however, they suspended its emergency library programme after being sued, reverting to its original system that limits the number of users who could access an e-book at one time. Internet Archive invoked the fair use doctrine to defend itself; however, the court rejected it. The organisation announced plans to appeal; however, they did so later than expected, after a delay.
The Internet Archive (IA) appealed against a court decision that found its e-book lending programme infringing on publishers’ copyrights. A three-judge panel have been hearing oral arguments in the case, which is mainly on the practice of ‘controlled digital lending’ (CDL). CDL allowed libraries to lend digital copies of print books, which the publishers argued was copyright infringement.
Internet Archive’s lawsuit led to the removal of over half a million books from its database. This removal had a significant impact on users. Students were particularly affected as they relied on the platform for academic research.
Despite the removal, Internet Archive’s collection is still extensive. It included a vast array of digital content. This content encompassed 835 web pages, 44 million books and texts, 15 million audio recordings, 10.6 million videos, 4.8 million images, one million software programs, many live concerts, and television programs.
Internet Archive’s approach to sharing resources was controversial. Traditional publishers criticised the organisation’s CDL approach. They compared it to a shadow library or piracy database. This criticism has highlighted the ongoing debate surrounding digital lending and copyright.
On June 28, 2024, a detailed hearing on this case was held in New York. The case was heard by the three-judge panel of the US Court of Appeals for the Second Circuit. Internet Archive’s lawyer, Joe Gratz, argued that CDL was a more efficient and convenient way for libraries to lend books they had legally acquired. He claimed that this practice was transformative and was favoured by the courts. However, the judges countered and questioned why the law should recognise converting a print book to a digital book as the same thing as lending the print book.
The judges also pointed out that there were separate markets for printed and digital books, with different prices, and that Internet Archive’s practice introduced a digital book into a new market without paying the premium. Internet Archive’s lawyer, Joe Gratz, countered that Internet Archive was just using technology to do what libraries traditionally did; however, in a more efficient way.
Arguing for the publishers, Elizabeth McNamara claimed that Internet Archive sought a radical change in the law that would destabilise the digital economy. She argued that Internet Archive made complete, exact digital copies of publishers' print books and distributed them worldwide without a licence or payment.
The judges also probed the publishers’ legal arguments, pushing back on the narrative that Internet Archive and its allies contrived CDL to rationalise illegal conduct. The court noted that fair use involved deciding whether a particular use was covered by the fair use factors.
After the hearing, Internet Archive’s co-counsel, Corynne McSherry, acknowledged the court’s deep engagement and said the questions suggested the court took its work seriously. The Association of American Publishers expressed their confidence that the outcome would go in their favour.
The court’s decision would have important implications for the future of digital lending and copyright law.
Arguments Presented by Both Sides
The hearing marked a significant moment in the ongoing legal battle between both sides. Major arguments of both sides were:
Internet Archive’s arguments
Public interest and access to knowledge The Internet Archive argues that its mission is to democratise access to knowledge by making books accessible to people who do not have easy access to physical libraries, especially during emergencies like the COVID-19 pandemic. They claim that CDL does not harm authors or publishers because it is a controlled, one-to-one lending process.
Fair use doctrine The Internet Archive asserts that CDL falls under the fair use doctrine, which permits copying copyrighted works without permission under certain circumstances, such as for nonprofit educational purposes, provided that it does not harm the market for the original work. They emphasise that CDL serves a public interest by enabling access to information and education.
Economic incentives did not harm The Internet Archive argues that CDL does not replace the market for digital books but rather complements it, as readers using CDL are less likely to have purchased the digital version otherwise. They also highlight that CDL has a limited audience compared to commercial e-book sales platforms.
Publishers’ arguments
Clear violation of copyright law Publishers assert that the Internet Archive’s actions amount to mass copyright infringement. They argue that CDL does not fit under the fair use doctrine, as it undermines the market for digital books by providing free access without compensation or a licencing agreement.
Significant market harm The publishers claim that the Internet Archive's digital lending model harms the market for digital books, particularly licensed e-books and audio books, which are an increasingly important revenue stream for publishers and authors. They present evidence suggesting that CDL has led to lost sales and reduced income.
Not a transformative use The publishers argue that simply digitising a book and lending it online does not qualify as a transformative use. They contend that CDL does not add new expression, meaning, or value to the original works and thus fails to meet the transformative use criteria under fair use.
Authors' rights Beyond publishers, authors are also affected by the Internet Archive’s CDL programme. The Authors Guild, an advocacy organisation for writers, supports the publishers’ lawsuit, arguing that the unauthorised lending of digital copies directly undermines authors’ ability to earn a living.
Implications of the Legal Battle
The legal battle between the Internet Archive and book publishers carries significant implications for various stakeholders. A ruling in favour of publishers could force digital libraries like the Internet Archive to cease their CDL programmes, limiting public access to digitised books. This could stifle efforts to democratise access to information, especially in underserved communities. The outcome of the case could redefine the boundaries of the fair use doctrine, particularly regarding digital lending and transformative use. A decision against the Internet Archive might narrow the scope of fair use, impacting libraries, archives, and educational institutions. If publishers succeed, it could strengthen their control over digital book distribution, reinforcing the need for licencing agreements for digital lending. This could lead to more restrictive practices in the e-book market, affecting libraries and consumers.
The case underscores the importance of balancing access to knowledge with fair compensation for authors and creators. A decision favouring publishers may lead to better compensation models for authors but could limit access to digitised books. The lawsuit raises broader questions about the future of open access and nonprofit digital libraries. It may encourage libraries to reconsider digitisation and lending practices and seek alternative models that comply with copyright laws.
Conclusion
The legal battle between the Internet Archive and book publishers represents a critical moment in the evolution of digital libraries and copyright law. It raises fundamental questions about the future of access to knowledge, the boundaries of fair use, and the rights of authors and publishers in a digital world. As the case moves through the appeals process, its outcome could have far-reaching implications for the future of digital lending, open access, and the balance between public interest and copyright protection.
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