• by Wendy Davis , Staff Writer @wendyndavis, July 14, 2022

In the spring of 2020, during the first phase of the COVID-19 pandemic, four book publishers sued the nonprofit Internet Archive for digitizing books and lending them online, without licenses.

The publishers contend the Internet Archive infringed copyright by distributing digital versions of the books, while the Internet Archive counters it's protected by fair use principles.

On Thursday, the Internet Archive drew support from a variety of outside groups -- including academics, library organizations and authors -- which put forward some new arguments in the 2-year-old fight over digital lending.

Among other arguments, the law professors say requiring lenders to license digital versions of books would also enable publishers to revise books after they came out.

“Digital licensing schemes allow publishers to pull books that they now consider politically sensitive, or replace an initially published version with an edited version, without disclosing what has been removed or changed. This practice destroys the integrity of the public record,” intellectual property professors led by Harvard's Rebecca Tushnet say in papers filed Thursday with U.S. District Court Judge John Koeltl in the Southern District of New York.

“History is too important to leave to the self-interest of copyright owners,” they add.

The lawsuit, which was filed in June of 2020 by Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House, targets two different Internet Archive programs -- the 11-year-old "Controlled Digital Lending" and the "National Emergency Library."

The "controlled" program loans one digital copy at a time for each hard copy that's been scanned and digitized, while the now defunct "emergency" program offered downloads of the same scanned hard copy to multiple users at once. The emergency program began in March of 2020 and ended that June, shortly after the publishers sued.

Library organizations, including Library Futures Institute and ReadersFirst, which also support the Internet Archive, argue in a separate friend-of-the-court brief that the nonprofit's digital lending program may offer better privacy protections than commercial licensing schemes.

“Controlled digital lending ... enables libraries to lend books on their own terms, allowing them to avoid the problematic privacy-implicating data collection practices of publishers and eBook aggregator services that may otherwise be unavoidable with licensed eBooks,” those organizations write.

The Authors Alliance, which says it aims “to advance the interests of authors who want to serve the public good by sharing their creations broadly,” also supports the Internet Archive.

That organization notes that the Internet Archive only lends books that have already been purchased.

“Each copy of a book that a library holds is already paid for, and they are only using that one copy to the benefit of readers and the public,” the Authors Alliance writes. “U.S. law has never required libraries to gain permission or pay again and again for each loan they make, despite the wishes of some rightsholders.”

The publishers and Internet Archive are expected to file additional arguments in September.