Internet Archive Should (but won’t) Quit While It’s Behind

On Monday last week, oral arguments were presented in cross-motions for summary judgment in Hachette et al. v. Internet Archive, and by end-of-business Friday, the court delivered its opinion thoroughly rejecting IA’s fair use defense. Although many of us watching this case felt a little whiplash Friday evening, the speed with which the court responded can perhaps be explained by the substantial body of case law in the Second Circuit which devastates IA’s arguments. The bottom line …

IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book. But no case or legal principle supports that notion. Every authority points the other direction.

IA immediately declared it would “keep fighting for the traditional right of libraries to own, lend, & preserve books,” but the court is well aware that this PR message has nothing to do with the conduct at issue in this case. Instead, under an unfounded legal theory called “Controlled Digital Lending” (CDL), IA has been asserting an invented right to produce and distribute its own ebooks—alleging that for every physical copy of a book stored somewhere in the collection, it is allowed to loan a digital scan to one reader at a time of that title.

The court has been very clear that IA is wrong on the law, and that libraries are not permitted to engage in this practice. Further, the opinion hints that a more thorough examination of the facts would not bode well for IA’s position had this case gone to trial. For instance, IA has been increasing the lending numbers in its CDL model by “partnering” with libraries to include those physical books in the system. But Friday’s opinion notes:

As an initial matter, IA has not kept its promise. Although the Open Library’s print copies of the Works in Suit are non-circulating, IA concedes that it has no way of verifying whether Partner Libraries remove their physical copies from circulation after partnering with IA.

In other words, while the Friday opinion focused primarily on eviscerating IA’s claim that the CDL model is allowed under the fair use doctrine, it noted that even if the scheme were legal, the archive is not in compliance with its own purported obligations. IA should quit while it’s behind. But it won’t. Instead, it will keep litigating and losing because this case isn’t about winning in court—it’s about playing the victim and selling a false narrative to the public.

This Case is About People Who Write Books

When IA founder Brewster Kahle says they’re fighting for “all libraries,” people in the humanities—artists, journalists, real librarians, and even some authors—believe him because 1) he sounds like one of us; 2) IA provides other valuable and legal services; and 3) it’s always easy to vilify an industry. So, instead of me nerding out on the court’s unequivocal rejection of IA’s fair use defense, I will instead highlight a rote statement from the opinion because it is probably the most important one regarding public perception about this case:

“They [publishers] obtain from authors the exclusive rights to publish books in digital formats…”

Copyright rights are vested in authors, and authors negotiate the conditional transfer of those rights to publishers. One cannot infringe the rights of publishers without infringing the rights and interests of authors. Of course, IA wants the public to think abstractly about the revenues at Penguin Random House et al. because it wants people to ignore the authors and what would happen to flesh-and-blood people if its conduct were allowed to continue and/or if it were replicated by other entities.

To consider the potential market harm using rough numbers, if the five publishers in this suit generate approximately $250,000 million/year from ebook licensing, and 30,000 authors receive 25% of that revenue, that’s a little over $2,000/year per author—less than a month’s rent in many places. And that per-author number is generous by some margin. There are nearly 50,000 working authors in the U.S.,[1] and the average income from writing alone is $20,000/year according to the Authors Guild. So, when IA alleges it has a right to reproduce and distribute its own ebooks, this is not an abstraction for the individual author—it’s grocery money.

IA Wants You to Think Its Operation is Under Siege

Many IA supporters on social media comment as if this litigation is a threat to the entire enterprise, but it is only IA’s Open Library model that is the subject of this suit. Neither the Wayback Machine nor the archive’s collection of public domain material is at issue. Additionally, the public should recognize that IA knowingly provoked litigation with its so-called National Emergency Library, releasing over one million in-copyright titles at will during the pandemic, and it has chosen to attempt to change the law by breaking it. But why?

The first post I ever wrote about Internet Archive asked whether the organization needs Brewster Kahle’s anti-copyright rhetoric and agenda to operate the useful and legal services it provides. And of course, it doesn’t. But IA has exploited, and will continue to exploit, this self-inflicted, quixotic lawsuit as a platform to lie to the public that it is just “doing what libraries do” as part of a broader effort to undermine the value and purpose of copyright rights.

Unfortunately, in this era of swooning cults of personality, Brewster Kahle is perceived as a rebel fighting for a cause when, in fact, he’s just another multi-millionaire with a populist message who either doesn’t understand or doesn’t care about the harmful implications of his tech-utopian ideas. The alleged mission to provide “universal access to all knowledge” should be read in the same light as Zuckerberg insisting that Facebook will be good for democracy. Or to put it another way, if this were Google instead of IA (because it could be), would my friends and colleagues in the humanities still buy what they’re selling?


David Newhoff
David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

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