• by Wendy Davis  @wendyndavis, December 21, 2023

Citing privacy concerns, digital rights groups are asking a federal appellate court to find that an ebook lending program run by the nonprofit Internet Archive is protected by fair use principles.

“This case could profoundly affect longstanding protections for reader privacy and thus affect a core purpose of copyright: public access to information,” the Center for Democracy & Technology, Library Freedom Project, and Public Knowledge write in a friend-of-the-court brief filed Wednesday with the 2nd Circuit Court of Appeals.

The groups are asking the appeals court to reverse a decision by U.S. District Court Judge John Koeltl in the Southern District of New York, who ruled that the lending program infringed publishers' copyright.

Koeltl “should have more carefully considered the socially beneficial purposes” of the program, including “protecting patrons’ ability to access digital materials privately,” the groups write.

Their argument comes in a battle dating to 2020, when Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House sued the Internet Archive over its 12-year-old “controlled lending program,” which involved digitizing books and then lending one digital version at a time for each print version that was scanned. (The suit also challenged the Internet Archive's “emergency” program, which operated for three months during the COVID-19 pandemic, and involved lending multiple ebooks for each digital version that was scanned.)

Koeltl ruled in March that the Internet Archive infringed copyright. He specifically rejected the Internet Archive's contention that its controlled lending program was protected by fair use exceptions to copyright principles.

The Internet Archive is now appealing that ruling to the 2nd Circuit.

The Center for Democracy & Technology and other groups argue that lending programs operated by Barnes & Noble, Amazon and other commercial providers collect detailed information about readers, including their annotations and bookmarks.

By contrast, the groups argue, libraries that digitize books and then lend out the scanned version can protect readers' privacy.

“For decades, libraries have protected reader privacy, as it is fundamental to meaningful access to information,” the groups write.

They add that initiatives such as the Internet Archive's controlled digital lending “allows libraries to continue protecting reader privacy while providing access to information in an increasingly digital age.”