The Internet Archive loses its appeal to lend e-books without permission

The Internet Archive has lost again in its bid to continue offering access to e-books for free and without any compensation to publishers or authors.

The U.S. Court of Appeals for the Second Circuit, based in New York, ruled on Wednesday that U.S. District Court Judge John Koeltl had acted correctly in finding for four major book publishers who sued the Archive for copyright infringement. Emma Roth has the story at The Verge.

The nonprofit Archive is one of the most useful corners of the internet, offering free access to web pages that otherwise would have disappeared and working with copyright holders to keep defunct publications available for viewing — such as, for example, The Boston Phoenix, one of my former haunts.

But the Archive chose a very odd hill to defend by insisting that it had a right to offer e-books without paying for a license from publishers, as libraries typically must do. The Archive claimed that it was in compliance with copyright law because it limited e-book borrowing to correspond with physical books that it had in its collection or that was owned by one of its partner libraries. That’s not the way it works, though.

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As the appeals court’s decision observes, public and academic libraries must purchase licenses for e-books even though they also hold physical copies of those books. “Critically, IA [the Internet Archive] and its users lack permission from copyright holders to engage in any of these activities,” according to the decision. “They do not license these materials from publishers, nor do they otherwise compensate authors in connection with the digitization and distribution of their works.”

The Archive claimed a fair-use exception to copyright law, a four-part test that the courts apply to determine whether copyrighted material can be used without permission. The court ruled in favor of the publishers on all four tests, mainly because the Archive had copied books in their entirety rather than just excerpts and because that practice could harm the potential market for those books. The decision concludes with some fairly harsh language:

IA asks this Court to bless the large scale copying and distribution of copyrighted books without permission from or payment to the Publishers or authors. Such a holding would allow for widescale copying that deprives creators of compensation and diminishes the incentive to produce new works. This may be what IA and its amici prefer, but it is not an approach that the Copyright Act permits.

The Archive has responded by removing some 500,000 books from its online library, explaining:

We understand that this is a devastating loss for our patrons, and we are fighting back through the courts to restore access to these books. Fortunately, other countries and international library organizations are moving to support controlled digital lending. We appreciate your patience and understanding as we fight this long battle.

I’m not sure what legal steps are available to the Archive other than appealing to the Supreme Court. Given that both Judge Koeltl and the Court of Appeals simply applied existing copyright law in a straightforward manner, it’s hard to imagine that the Supremes would be interested unless they possess some previously undetected enthusiasm for upending the law in its entirety.

My views should not be taken as a value judgment. The folks at the Internet Archive have always been among the good guys of digital culture — one of the last pure outposts from the early days of internet idealism, along with Wikipedia and very few others. The giant book publishers simply want to maximize their profits, and authors are not going to benefit from Wednesday’s decision outside a few bestselling behemoths at the top. Journalist Dan Gillmor put it this way on Mastodon:

Others have said this, but the Internet Archive’s appeals-court loss to Big Publishing is a disaster for everyone but the cartel of companies and a tiny number of A list authors.

The publishers will tolerate libraries only as long as they can control everything about how books can be loaned. If public libraries were being invented today, the cartel would make their core functions illegal.

The problem, though, is that it is the job of judges to apply the law, not offer a critique of capitalism.

There’s nothing in The Verge story or the Court of Appeals’ decision specifying what penalties the Archive will have to pay. I hope there are none. And though it’s probably too much to hope that the publishers will rethink their approach to e-books in their moment of triumph, they really ought to make some changes.

Digital distribution should have led to an increase in the availability of knowledge. Instead, it’s led to a regime of top-down control that is more restrictive than what prevails in the world of physical books. Try lending an e-book to a friend. That may be one of the reasons that e-books are declining in popularity while physical books are on the upswing.

All of this is playing out at a time when artificial intelligence companies are being sued for gobbling up vast quantities of text without permission. As Kate Knibbs writes for Wired:

The new verdict arrives at an especially tumultuous time for copyright law. In the past two years there have been dozens of copyright infringement cases filed against major AI companies that offer generative AI tools, and many of the defendants in these cases argue that the fair use doctrine shields their usage of copyrighted data in AI training. Any major lawsuit in which judges refute fair use claims are thus closely watched.

Needless to say, AI companies like ChatGPT, Meta and their ilk have far more power and resources at their disposal than a struggling nonprofit like the Internet Archive.

Earlier:

• Why the Internet Archive’s copyright battle is likely to come to a very bad end (March 21, 2023)
• A federal judge delivers an easily predicted rebuke to the Internet Archive (March 25, 2023)