Lawsuit against Internet Archive tackles digital lending and copyright

Sharing copyright music, movies and books online can be legally precarious, and there are restrictions on how they can be lent.

When copyright laws were written, much of the technology we use to consume media today didn’t exist. So the courts decide how those lending rules apply.

And there’s a big case happening now.

Four major publishers are suing the Internet Archive, a website repository that also loans digital books. Read the full complaint here.

Aram Sinnreich, a professor at the American University School of Communication, discussed the lawsuit with “Marketplace Tech” host Kimberly Adams. Sinnreich said the Internet Archive used a process called controlled digital lending for years. In that approach, libraries can send out one digital copy for every physical copy they hold.

The following is an edited transcript of their interview.

Aram Sinnreich: Basically, you can put an e-book or an audiobook on hold, and then, when it becomes available, you can download it to your phone or even your Kindle, read it, listen to it, and then when you’re done, return it the same way you would with a physical copy of a book or a CD. But during the early months of the pandemic, back in 2020, the Internet Archive basically said, this is such an emergency. So many people are going to school online, they’re going to work online, we are going to allow more people to take out our digital books than we actually have copies of the physical books. And so the publishers saw that as an opportunity to strike a much larger blow. What they figured is that this was such an egregious overreach, that if they took the Internet Archive to court, they could essentially shut down online lending by all libraries altogether. And that’s more or less what they’re seeking to do with this case.

Kimberly Adams: The publishers have just been waiting on this, it seems.

Sinnreich: The publishers have been looking for a way to outlaw controlled digital lending since it began. And this was probably the best shot that they’ve got because they can tell a real story here that paints the Internet Archive as a bunch of copyright criminals. And if they can tell that story to a jury, eventually, they might be able to convince them that they’re in the right and the Internet Archive is in the wrong.

Adams: What are the publishers saying in all of this? Do they have an alternative suggestion for how digital lending should be handled?

Sinnreich: The publishers believe that digital lending should essentially be a right that they license to libraries and that every time a library wants to loan something to a reader, the publishers should get paid a licensing fee. Right now, all these people are reading all these books without paying the publishers. So, publishers see this as an opportunity to get new sources of revenue from all these things that they didn’t get paid for before.

Adams: I’m also imagining what that might do to local library budgets.

Sinnreich: It would be prohibitively expensive for local libraries to have to pay a fee, even a small one, every time somebody took out a book. And so libraries are historically underfunded. For the last 50 years especially, they have been very intentionally used as engines of social mobility and social safety in low-income neighborhoods. And without question, it would be these libraries that would be hit the hardest.

Editor’s note (July 25 2022): Libraries currently pay fees associated with the licensing e-books — fees many find burdensome. Licensing agreements range in price, length of borrowing time, and the number of loans. While a traditional paperback is protected by the first-sale doctrine, in which publishers relinquish the rights to a book after it is sold, digital copies are not protected by this doctrine. Publishers sell distribution rights to companies like OverDrive or Hoopla, who then sell lending lights to libraries. The price of a digital copy for a library can exceed the cost of a traditional e-book that a consumer buys. Publishers like MacMillan argue that e-book lending can cut into revenue for authors and publishers, and that fees libraries pay help make up for lost revenue. The Authors Guild has expressed support for the publishers’ lawsuit against the Internet Archive.

Related links: More insight from Kimberly Adams

The initial complaint is here. The Internet Archive’s answer is here.

To better understand how some of these licensing agreements work, WGBH has a story outlining some of the details.

And the New Yorker has a piece breaking down some of these negotiations, and how dependence on e-books grew during the initial phase of of COVID lockdowns in the U.S.

A piece from Vice’s Motherboard gets deep into the details of the case and the high stakes around it.

A recent commentary from Doug Preston, president of The Authors Guild, shares more details about the ongoing lawsuit. As part of it, he says that attempts to establish licensing agreements with the Internet Archive were “spurned.” 

Libraries have been vocal about these licenses. the American Library Association has a page on its website summarizing its policy position and advocacy on e-books.  

“Many new models for library digital lending will make it difficult for libraries to fulfill our central mission—ensuring access to information for all. ALA is exploring all possible avenues to ensure that libraries can continue to purchase and lend at pricing models that are reasonable and flexible,” according to the ALA. 

And if you’re wondering how the Internet Archive digitizes some of the millions of books on its virtual shelves, we have a video from the archive that shows the scanner their engineers designed and an operator using it.

How do they do it? Page by page. Over and over.

If you’re a music fan, the Internet Archive has an ongoing project called the Great 78, which has digitized more than 300,000 recordings from 1898 to the 1950s.

The title of the project refers to old records that were played at 78 rpm, or revolutions per minute.

More modern records play at 33.3 or 45 rpm.

78s are also more fragile than modern vinyl records since they were mostly made from shellac, which is made from beetle resin, according to the Internet Archive.

Also, you might recognize Sinnreich’s voice. He was on our show earlier this year talking about the laws and protections of a different type of digital item: NFTs, or non-fungible tokens. And if you’re confused about how exactly those digital assets work, I’d give that episode a listen on whatever device you’re using to listen to this digital copy.

Editor’s Note (July 25 2022): Additional context has been added throughout.