Internet Archive judgement: A very partial decision

• Last Friday, the US Federal Judge overseeing the Hachette vs Internet Archive case issued their judgement, broadly accepting the arguments of publishers against the Archive’s use of Controlled Digital Lending.
• The decision, unfortunately, pays little attention to the value of the work of libraries, and in particular of lending.
• While regrettable, this decision is of little relevance to Europe, where secure forms of digital lending can take place under a specific legal basis (see KR21 eBook position statement).

The question of whether US libraries can digitise and lend books in their collections (Controlled Digital Lending) has been in the news extensively in recent years with the case opposing a group of major publishers – led by Hachette – and the Internet Archive (IA).

Drawing on the US Fair Use doctrine, the Archive has helped libraries to deliver on their mission to support access to information, knowledge and culture, in particular during a COVID-19 pandemic which otherwise risked shutting down access to millions of texts held in physical collections.

This, in addition to its work to preserve the internet, has made the Internet Archive a key player in the library landscape for many years, and a library of last resort for many.

The case in question arose during the pandemic, in response to the IA’s National Emergency Library initiative, which lifted limitations on how many copies of books could be lent out at any one time. However, the complaint made by publishers was far more far-reaching, questioning the way in which the Archive made use of Controlled Digital Lending in general. It focused, in particular, on the lending of in-copyright works.

In a decision, to which the Internet Archive has already underlined its intention to appeal, judge John G Koeltl rejected the legal basis offered by the IA for its work, making a finding  against the four Fair Use factors in US law.

The judgement, which appeared barely days after oral evidence was shared, takes a very narrow approach which leaves out a lot of the factors that are at play. An idea of the tone comes from the judge’s description of the Internet Archive’s copies as ‘bootleg books’, and the clear prioritisation of rightholder revenues over any other benefit. 

Furthermore another concern is the way in which the nature of the Archive’s Open Library is assessed. The judge’s logic here would appear to leave very little room for any entity including a university library or even a not-for-profit charity  to be counted as non-commercial, given that seeking donations, or even promotion of a service can be seen as deriving benefit and therefore somehow commercial.

In particular, it does not give any weight to the value of library lending in general as a means for realising rights of access to culture, education and research, which is as relevant in the digital world as in the physical. Indeed, the judge’s arguments imply that were it not for the exhaustion doctrine, physical book lending would be in doubt as potentially unfair competition with book sales.

Similarly, the judgement puts a lot of weight on the theoretical losses to publishers from the type of lending carried out by the Internet Archive, and dismisses out of hand the arguments and evidence to the contrary provided by the Archive. 

The judgement also only covers a relatively small part of controlled digital lending activities, leaving much open. In emphasising the apparent risk of competition with licensed eBooks, it does little to address the situation of the many, many in-copyright books that have never appeared in electronic form, let alone those that are out of commerce altogether.

As such, there will be plenty to discuss in the future appeal, not least the correctness of the implication in the judgement that libraries’ ability to fulfil their missions in the digital world should rely entirely on its profitability for publishers.

Of course, and importantly, the judgement is of very little relevance to libraries in most other parts of the world, given that it draws heavily on US case law around Fair Use. In particular, it says little to shape thinking around how to improve the situation for eBooks in the European Union, which already enjoys a specific legal basis in the form of a pre-existing judgement of the Court of Justice of the European Union, and where public lending right payments are payable for library loans.

Knowledge Rights 21, building on the EU court’s judgement, argues that a provision allowing libraries to digitise and lend securely and in line with the number of copies they own, backed up by public lending right payments, opens the door to a much better balance between the interests of library users and rightholders. We look forward to sharing further insights into eLending in Europe, from legal and competition perspectives, in the coming months.