Judge puts corporate profits above public benefits in Internet Archive copyright case

Walled Culture has just written about the selfish and short-sighted lawsuit that four of the biggest publishers brought against the Internet Archive. Unfortunately, following oral arguments last week, Judge John G. Koeltl has rather quickly found in favour of the former. The Internet Archive has already said that it will appeal against the decision, so the fight isn’t over. The judgment handed down by the court is a fascinating document because of what it says about the judge’s underlying assumptions, and about the state of copyright. The judge explains how digital publishing currently works:

Libraries usually buy their print books from publishers or wholesalers. Copies of ebooks, however, are typically not bought but licensed to libraries from publishers through distributors called “aggregators.” The Publishers task aggregators with ensuring that a library lends its ebooks only to the library’s members.

The judge goes on to explain that publishers offer various kinds of licensing, but only one of them – Wiley – offers a “perpetual, one-copy, one-user licence”. The others offer things like time-limited licences, which must be bought again and again; or licences that allow an ebook to be lent out a fixed number of times. Aside from the Wiley licence, none of the others give libraries the right to lend out an ebook as often as they like, or for as long as they like. In other words, they represent a considerable retrogression from what a traditional library does. For the judge, this is not just acceptable, it is perfectly normal. The Internet Archive (IA), has a completely different approach, described by the judge as follows:

First, IA makes available one digital copy for each non-circulating print book it keeps in storage. Second, IA partners with libraries to “contribute” the number of their print copies of the book toward the number of lendable copies on IA’s Website. Even if a partner library has multiple copies of a book, IA counts only one additional copy per library.

There are two key elements here. First, the Internet Archive lends out an ebook only when it has a physical copy of that book in its collection. It is simply allowing people to access that physical book electronically. Secondly, it extends that capability to participating libraries. Provided they too own a physical copy of a book, the Internet Archive will allow visitors to borrow it virtually. What the Internet Archive has done, then, is to pool the holdings of all participating libraries into one, consolidated library, which then lends out digital copies of the physical books it holds collectively.

This innovative approach allows people anywhere to “visit” this consolidated library, and to borrow books online. It means that more people around the world can read books that they would never encounter personally, since it is not practical for them to visit the physical library holding the title. That was particularly important during the Covid pandemic, when lockdowns around the world meant that few people could travel anywhere.

It is clear, then, that the Internet Archive’s approach – based on physical books that have been bought by someone – is an important contribution to making knowledge and creativity available, at a time when both were hard to access. But the judge will have none of it. He summarises his view on the whole case as follows:

IA argues that its digital lending makes it easier for patrons who live far from physical libraries to access books and that it supports research, scholarship, and cultural participation by making books widely accessible on the Internet. But these alleged benefits cannot outweigh the market harm to the Publishers.

There is clearly no doubt in this judge’s mind that the alleged “market harm” to publishers should outweigh any wider consideration of “the public benefits [IA’s] copying will likely produce”. And that, in a nutshell, is the problem with copyright today: that it is framed in terms of corporate profits not human progress. As Brewster Kahle, who set up the Internet Archive (and whose Kahle/Austin Foundation supports this blog) put it in a statement on the decision:

Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society – owning, preserving, and lending books.

Let’s hope the higher courts have a deeper understanding of what is at stake here.

Featured image by Internet Archive.

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