A federal court in New York has ordered motions for summary judgment by early summer in a lawsuit filed by four major publishers against the Internet Archive over its scanning and lending of print library books, putting the fate of the closely watched copyright case on track to be in the court’s hands by early fall.
In a June 10 order, Judge John G. Koeltl granted the parties’ request to proceed with summary judgment motions on a schedule first proposed by magistrate judge Ona T. Wang. Opening summary judgment briefs are due by July 7; opposition briefs by September 7; and reply briefs by October 7. Although, in a handwritten note, Koeltl said he “seriously questions” whether the parties request for an expansive word count for their briefs—12,000 words for opening briefs; 10,000 words for opposition briefs; and 6,000 words for reply briefs—is necessary.
The suit revolves around the Internet Archive’s scanning and lending of print library books under an untested legal theory known as “controlled digital lending” (CDL). Under CDL, the Internet Archive (and other libraries) digitize books they’ve legally acquired and lend the scans under rules designed to mimic a traditional library loan: only one person can borrow a scan at a time; the scans are DRM-protected to enforce loan periods and prevent copying; and, crucially, the scan and the print book the scan is derived from are not allowed to circulate at the same time, maintaining a “one-to-one own-to-loan” basis.
While the practice of CDL has troubled author and publisher groups for years, a lawsuit had not appeared imminent until late March, 2020, when the Internet Archive temporarily (and unilaterally) suspended some of its CDL restrictions for its now closed National Emergency Library initiative, making the IA’s collection of scanned books available to simultaneous borrowers while schools and libraries were shuttered by Covid-19. In response, Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House, coordinated by the Association of American Publishers, filed a copyright infringement lawsuit against the Internet Archive on June 1, 2020.
In a June 9 letter to the court, Internet Archive attorneys reiterated their position that its CDL-based scanning and lending program are protected by fair use. “To the extent that the feared market harms are the very same ones that would flow from handing a particular copy to a library patron, or mailing it to them, rather than lending that copy digitally, those harms are not ones that copyright takes into account,” IA lawyers argue. “Every copy Internet Archive lends out was bought from the publishers, and it is not fair to demand that libraries pay again to lend the copy they already own.”
IA lawyers say the suit raises two questions for the court: first, whether a library can legally create and lend under CDL restrictions a digital copy of print book it has legally acquired in lieu of the print copy; and second, whether a global pandemic justified the Internet Archive’s actions in creating the National Emergency Library. “The answers to these questions will shape how libraries continue to serve the public interest in the digital age,” IA lawyers insist.
In their June 10 letter, attorneys for the publishers insist the Internet Archive isn’t a library at all, but “a massive copyright infringement enterprise.” Furthermore, the publishers argue that the concept of controlled digital lending “has no basis in law” and that "the creation of an e-book from a print book falls under the author’s exclusive right to create derivative works.”
