• by Wendy Davis  @wendyndavis, June 10, 2022

In March of 2020, when libraries across the country shut down in response to the COVID-19 pandemic, the nonprofit Internet Archive began offering a program that allowed the large-scale borrowing of digital books.

That program, the National Emergency Lending Library, offered downloads of the same hard copy of books to multiple users at once.

Four publishers responded by suing the Internet Archive in federal court in the Southern District of New York, arguing that the organization was infringing copyright by offering the digital books.

The publishers sued over both the emergency program (now ended) and a separate lending program dating to 2011, through which the Internet Archive loaned only one digital copy for each hard copy that was scanned.

On Thursday, the Internet Archive told U.S. District Court Judge John G. Koeltl that it will argue both lending programs -- the emergency program, which lasted from March through June of 2020, as well as the original program -- are protected by fair use principles.

“In the spring of 2020, an unprecedented global pandemic forced all of the libraries to close,” the Internet Archive's lawyer wrote to Koeltl in a letter requesting a conference. “Under those unique circumstances, Internet Archive lifted its one-to-one owned-to-loaned ratio. And under those unique circumstances, lending a single library book to more than one patron at a time was fair use.”

The organization goes on to write that the “public benefits of reuniting students with the books locked up in their shuttered classrooms, and reuniting the public with the books locked up in their shuttered libraries, justified that temporary measure.”

The Internet Archive adds that the original program -- through which the nonprofit loaned digitized copies of scanned books, but only one at a time -- is also protected by fair use principles.

“Digital lending of library books is more efficient than physical lending in some respects; a library need not deliver or mail a book to a patron when the lending occurs digitally,” the organization writes. “Just as with physical lending, only one patron can borrow the book at a time, and the one patron who has borrowed a particular print copy from a library is entitled to read it.”

The publishers argued in their original complaint that the Internet Archive's rules for the original program were “concocted from whole cloth.”

“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 its digital lending initiative.

Judges typically decide fair use questions by examining several factors, including whether whoever copied the material did so transformatively -- 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.

In that matter, the judges who sided with Google said the company's copying of books was “highly transformative,” because digitizing the books made them searchable. But Google, unlike the Internet Archive, didn't allow users to download entire copies of books under copyright.

The Internet Archive and publishers are expected to file a new round of arguments with Koeltl by July 7.