• by Wendy Davis  @wendyndavis, October 11, 2022

The nonprofit Internet Archive is pressing a federal judge to rule that its an online library program, which involves scanning books and lending digital versions, is protected by fair use principles.

“It is hard to imagine a less commercial activity than lending books, for free, to patrons, for a limited time, at the lender’s own expense,” the organization argues in a new round of court papers filed Friday with U.S. District Court Judge John Koeltl in New York. “That’s what the Internet Archive does, and has been doing for more than a decade, consistent with its overall mission: to preserve and promote access to knowledge and culture, including books.”

But Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House, which are suing the Internet Archive over alleged copyright infringement, counter that the nonprofit has no right to distribute digital books without licenses.

The publishers wrote Friday in their latest court papers that the Internet Archive's digital lending program is merely “a cynical branding exercise designed to repackage industrial-scale copyright infringement as a legitimate enterprise.”

They added that the Internet Archive “does not disprove that the publishers lose substantial potential sales of authorized ebooks to libraries and consumers” due to its lending program.

The battle between the Internet Archive and publishers dates to June 2020, when the publishers sued over alleged copyright infringement, arguing that the Internet Archive can't lawfully distribute copies of digital book files without licenses.

The suit came nine years after the Internet Archive launched its “controlled lending program,” which involves loaning one digital copy at a time for each hard copy of a book that's been scanned and digitized.

During the first months of the COVID-19 pandemic, the nonprofit also operated an “emergency” program, which offered downloads of the same scanned hard copy to multiple users at once. That program ceased in June of 2020.

The publishers sued over both initiatives.

The Internet Archive argues its program is protected by fair use for several reasons, including that it's noncommercial.

The organization also argues that the outcome of the lawsuit could determine “whether copyright law gives publishers the power to dictate which books in a library’s collection can and cannot be loaned digitally.”

The publishers counter that the Internet Archive's legal theory is “radical” and runs contrary to copyright law.

“In the end, Internet Archive asks this court to adopt a radical proposition that would turn copyright law upside down by allowing [Internet Archive] to convert millions of physical books into ebook formats and distribute them worldwide without paying rightsholders,” the publishers write.

Late last month, hundreds of authors -- including ones whose books were cited by publishers in their complaint -- publicly backed the Internet Archive.

“We fear a future where libraries are reduced to a sort of Netflix or Spotify for books,” Neil Gaiman, Lemony Snicket, Cory Doctorow and hundreds of others said in an open letter. “Publishers must balance profits for the most prominent authors and shareholders with the right of the public to free, unsurveilled access to knowledge and information -- as well as the right of emerging authors to be collected, preserved, and discovered.”