Copyright Experts Support the Internet Archive's Incredible Legal Battle

The Internet Archive: preserving digital history for future generations

The Internet Archive (IA) is a non-profit organization dedicated to preserving digital history for future generations.

This digital library strongly supports a free and open Internet, and began meticulously archiving the web over a quarter of a century ago.

As well as archiving the web, the AI also operates a library offering a vast collection of digital media, including books. Staying true to the centuries-old library concept, AI users can also borrow books that are digitized and scanned in-house.

Publishers against the Internet Archive

The self-digitization service differs from the licensing agreements to which other libraries adhere. Not all publishers are happy with AI's approach, which triggered a massive legal battle two years ago.

Publishers Hachette, HarperCollins, John Wiley and Penguin Random House have filed suit, likening AI's controlled digital lending (CDL) operation to copyright infringement. Earlier this year, a federal court in New York concluded that the library is indeed liable for copyright infringement.

The court's decision effectively put an end to AI's self-listing library, at least for the books of the publishers concerned. However, AI doesn't intend to leave it at that, and last week the non-profit organization filed its opening brief with the Second Circuit Court of Appeals, hoping to reverse the ruling.

Support from the Authors Alliance

AI is not alone in this legal battle. As the week progressed, several parties submitted amicus briefs to the court in support of the AI library. This includes the Authors Alliance.

The Authors Alliance represents thousands of members, including two Nobel Prize laureates, one U.S. poet laureate and three MacArthur Fellows. All benefit from making their work available to a wide audience.

If the AI lending operation is banned, authors fear that their books will become less accessible, allowing major publishers to increase their power and control.

The Alliance argues that the federal court failed to consider the position of authors, focusing heavily on publishers. However, the interests of these groups are not always aligned.

"Many authors strongly oppose the publishers' actions in this lawsuit because they support libraries and their ability to innovate. Authors rely on libraries to reach readers, and many are proud that their works are preserved and made available through libraries to serve the public.

"Because these publishers have such concentrated market power [...], authors who wish to reach a wide audience rarely have the power to negotiate enough to maintain adequate control of publishers to independently authorize public access as it is here," the Alliance adds.

This criticism from authors is nothing new. Hundreds of writers supported the AI Digital Book Library at an earlier stage of this lawsuit, urging the publishers to drop their case.

Copyright academics support AI

In a separate brief, several leading law and copyright academics, many with professorial titles, raise similar arguments. They argue that the AI lending system is not that different from physical libraries, which are an integral part of culture.

"Libraries have always been free under copyright law to lend the materials they own as they see fit. This is a feature of copyright, not a bug," reads the brief.

What's new here is that publishers are now claiming total control over how their digital books are handled. Instead of allowing libraries to own copies, they have to license them, making it impossible to add them to the permanent archive.

"Major publishers refuse to sell digital books to libraries, forcing them to settle for restrictive digital content licenses rather than true ownership. In addition, publishers insist they can prevent libraries from digitizing their legally purchased physical books and lending the resulting digital copies."

More support

To date, the Court of Appeals has received four amicus briefs in support of the AI Library. In addition to the two mentioned above, others include a joint submission from the Center for Democracy & Technology, the Library Freedom Project and Public Knowledge.

These groups also point out that the court focused too much on the publishers' bottom line, while failing to take sufficient account of consumers' rights.

"The trial court should have considered more carefully the socially beneficial objectives of the library-led CDL, which are to protect users' ability to access digital materials privately, as well as the harm to the public interest of copyright in denying libraries use of the CDL."

The fourth amicus brief comes from information and history researchers Kevin L. Smith and Will Cross, who also argue that publishers already have too much power.

Academics believe that the AI digitization and lending library is a typical example of fair use, placing the interests of all stakeholders more fairly in balance.

"Here, the failure of the market is obvious: one side (the publishers) has a dominant position that allows them to control all the terms of any sale, without any countervailing force to balance the market.

"Fair dealing was designed to address precisely this type of market failure. As such, CDL should be recognized as fair dealing. Otherwise, a ruling against CDL would undermine the public mission of libraries and perpetuate the existing market failure," they add.

With considerable support for the Internet Archive, the stakes in this legal battle are clear. So far, the publishers have not yet filed their response, but it is likely that they will also receive support from third parties.