Faced with a legal challenge by book publishers, the nonprofit Internet Archive will end its “National Emergency Library” program, which enabled the large scale borrowing of digitized books.
The initiative launched in March, when the COVID-19 pandemic shuttered libraries nationwide. The Internet Archive had planned to end the program at the end of this month, but will instead shutter it on June 16.
“We moved up our schedule because, last Monday, four commercial publishers chose to sue Internet Archive during a global pandemic,” Internet Archive founder Brewster Kahle said this week in a blog post.
The nonprofit, which has been digitizing books and lending them since 2011, still plans to continue with its older initiative, the “Controlled Lending Program.”
For that program, the organization only lends out one digital copy at a time for each hard copy that has been scanned. By contrast, the “National Emergency Library” offers downloads of the same scanned hard copy to multiple users at once.
Earlier this month, four publishers sued the Internet Archive over both programs.
The publishers alleged in a complaint filed in U.S. District Court in Manhattan that the original “controlled lending program" operates under rules that “have been concocted from whole cloth and continue to get worse.”
“No provision under copyright law offers a colorable defense to the systematic copying and distribution of digital book files simply because the actor collects corresponding physical copies,” the publishers wrote.
They added that the Internet Archive “opportunistically seized upon the global health crisis” to expand digital lending.
Should the publishers pursue the lawsuit, the Internet Archive might attempt to argue that its "controlled lending program" is justified as a “fair use.”
The publishers attempted to preempt that potential argument in their complaint. “No concept of fair use supports the systematic mass copying or distribution of entire books for the purpose of mass reading,” the complaint states.
Judges typically decide fair use questions by examining several factors, including whether whoever copied the material did so in a transformative way -- such as by using a book excerpt in a review.
Several years ago, Google successfully argued that its book digitization project -- which involved scanning hard copies of books, making them searchable and then displaying snippets in response to search queries -- was protected by fair use.
Google, unlike the Internet Archive, did not allow users to download entire copies of books under copyright.
Additionally, the judges who sided with Google said the company's copying of books was “highly transformative,” because digitizing the books made them searchable.