From a Wall Street Journal story by Erin Mulvaney and Jeffrey A. Trachtenberg headlined “Online-Books Lawsuit Tests Limits of Libraries in Digital Age”:
A federal judge on Monday will weigh pleas by four major book publishers to stop an online lending library from freely offering digital copies of books, in a case that raises novel questions about digital-library rights and the reach of copyright law that protects the work of writers and publishers.
Nonprofit organization Internet Archive created the digital books, building its collection by scanning physical book copies in its possession. It lends the digital versions to readers worldwide, with more than three million digitized books on offer. Titles range from Stephen King’s scary bestseller “It” to Kristin Hannah’s historical novel “The Nightingale.”
The archive expanded its digital lending during the Covid-19 pandemic, temporarily lifting limits on how many people could check out a book at one time. The move helped prompt the publishers’ copyright infringement lawsuit in 2020, which is pending before U.S. District Judge John Koeltl in Manhattan.
The plaintiffs are Lagardère SCA’s Hachette Book Group, John Wiley & Sons Inc., Bertelsmann SE’s Penguin Random House, and HarperCollins Publishers, which like The Wall Street Journal is owned by News Corp. They argue the Internet Archive book platform “constitutes willful digital piracy on an industrial scale” and hurts writers and publishers who rely on consumers buying their products.
William Adams, general counsel for HarperCollins Publishers, said the archive’s approach has no basis in law. “What they’re doing is supplanting what authors and publishers do with libraries and have been doing for a long time,” he said.
The Internet Archive says its lending practices are a fair and legal use of the books, in the same way that traditional bricks-and-mortar libraries have a right to share their collections with the public.
“The stakes are high because we’re in a situation where libraries and readers want to access books,” said Corynne McSherry, legal director for the Electronic Frontier Foundation, a nonprofit digital-rights group that is part of the legal team representing Internet Archive.
Ms. McSherry said authors and publishers aren’t suffering financial harm from libraries that want to curate their own collection of digital titles.
At the center of the dispute is a growing practice that supporters call controlled digital lending, in which a library owns a physical copy of a book, digitizes it and then loans out the digital version to one borrower at a time. Advocates say the approach can be particularly beneficial for older and less popular titles for which publisher-issued ebooks might not be available.
The model stands in contrast to the industry-blessed approach in which libraries pay publishers to license ebooks for lending to the public.
Judge Koeltl is weighing motions from both sides seeking a final ruling in their favor.
The case follows earlier battles focused on a book database created by Alphabet Inc.’s Google. The company scanned millions of titles and allowed users to search for specific terms and view snippets of books—but not the entire works—in which those terms appeared.
Lower courts ruled that Google’s actions constituted fair use of authors’ works. By effectively building a searchable digital card catalog, Google’s actions created significant public benefits, a judge found.
The Supreme Court declined to review the case, turning away an appeal by the Authors Guild and individual writers.
The guild is supporting the publishers in the new litigation. “A real library pays for their books,” said Mary Rasenberger, chief executive of the Authors Guild.
“If this conduct is normalized, there would be no point to the Copyright Act,” said Maria Pallante, chief executive of the Association of American Publishers, whose members include consumer, academic and professional publishers. “It would effectively render the rights of authors, including the right to market and monetize their works, meaningless.”
Dueling groups of intellectual-property scholars have weighed in on the case. Academics backing the publishers say the Internet Archive and its supporters in the library community are seeking a wide-ranging exception to copyright law that can be granted only by Congress. Professors supporting the Internet Archive say the publishers’ position could limit the work and utility of libraries in the digital era.
Juliya Ziskina, a policy fellow with the Library Futures Institute, a group that advocates for digital lending, said the future of lending is at stake. “Copyright law doesn’t stand in the way of lending a book to one person at a time via the Internet,” she said.