Graphic by Ayo Olowole '26.
By Olivia Wilson ’24
Books Editor
The online lending library Internet Archive, which has operated for over twenty-six years out of San Francisco, lost a multimillion-dollar class-action lawsuit on March 24 against a coalition of major publishing houses. The publishing houses sued in June 2020 over the Internet Archive’s digital distribution of copyrighted books. The case was tried in the Southern District Court of New York under Judge John G. Koeltl, who sided with the publishing houses.
The specific grievance cited by the publishing companies involves Internet Archive’s alleged violation of a practice called “controlled digital lending.” This is a practice followed by library services with online components, like Internet Archive and Libby, that allows digital distribution of copyrighted work, but only up to the combined number of the digital and physical copies of a published work the library has legally acquired. For example, if a library owns three copies of a book, digital or physical, there can only be up to three copies circulated either digitally or physically.
The Internet Archive is not unique in incorporating this model into its practices. Libraries across the country use this model for their lending, rather than negotiating for e-Books with publishers, a standard in the industry that earns publishing houses millions in royalties. However, the practice has been criticized in the publishing world for depriving authors of their royalties.
The plaintiffs — Hachette Book Group, HarperCollins, John Wiley & Sons and Penguin Random House — alleged that the Archive’s “National Emergency Library” initiative was a copyright violation.
The Archive marketed the “National Emergency Library,” which operated during the pandemic as physical libraries were closed and students were learning from home, as an alternative to the physical libraries where access was lost due to COVID-19. According to an article by NPR, while the Archive followed more traditional, controlled digital lending practices prior to the onset of the pandemic, the National Emergency Library temporarily suspended its lending waitlist and allowed more readers to check out digital copies than the library’s 18 headquarter locations own physically. The project ran from March 24 to June 16, 2020, when it was discontinued following the lawsuit. The Archive referred to the practice as abiding by fair use laws, while the plaintiffs referred to it as “mass copyright infringement.”
In his decision, Koetl said that established law and precedent were on the side of the publishers. According to the judge’s decision, Internet Archive’s definition of fair use did not apply to their case. Fair use only protects those uses of copyrighted works as applied to “criticism, comment, news reporting, teaching[,] … scholarship or research.” The archive argued that since the National Emergency Library was a substitute for physical libraries and learning resources, it did not violate copyright law.
Some in the publishing world applauded the judge’s decision. The Author’s Guild, a coalition that offers a variety of types of aid to authors including legal advice and copyright help, tweeted they were “thrilled” with the outcome of the decision and accused Internet Archive of showing a “shocking” amount of disrespect to authors with their policies.
“Controlled digital lending is not controlled nor legal,” an Op-Ed on the Author Guild’s website proclaims. The Op-Ed also calls the practice a gross misinterpretation of fair use policy.
The Internet Archive’s stated mission is to “provide universal access to all knowledge,” and the nonprofit is known most prominently for its website archival service the Wayback Machine, which holds over 804 billion web pages from up to 25 years ago, some of which are not available for access in any other place online. Like these websites, the Archive also hosts scanned printed materials that have few copies in print. Some supporters of the Archive’s mission fear that this decision places all online libraries, and online book lending in general, at risk. If controlled digital lending is outlawed, they fear millions of people could lose access to learning materials
In a recent Op-Ed for Inside Higher Education, a group of eight college-level librarians criticized the decision, saying that “the Internet Archive is the most significant specialized library to emerge in decades,” and that the lawsuit “would jeopardize the future of digital libraries nationwide.”
The sentiment is similar among Mount Holyoke students. Amelia Ducey ‘24, a student worker for LITS, said of the decision that “having course texts available online is important for accessibility reasons” and that it has “always been silly” to her that eBooks have a one user limit.
The Internet Archive plans to appeal the lawsuit, though a new court date has not yet been set.