Internet Archive Files Appeal Brief Defending Libraries and Digital Lending From Big Publishers’ Legal Attack

SAN FRANCISCO—A cartel of major publishing companies must not be allowed to criminalize fair-use library lending, the Internet Archive argued in an appellate brief filed today. 

The Internet Archive is a San Francisco-based 501(c)(3) non-profit library which preserves and provides access to cultural artifacts of all kinds in electronic form. The brief filed in the U.S. Court of Appeal for the Second Circuit by the Electronic Frontier Foundation (EFF) and Morrison Foerster on the Archive’s behalf explains that the Archive’s Controlled Digital Lending (CDL) program is a lawful fair use that preserves traditional library lending in the digital world. 

“Why should everyone care about this lawsuit? Because it is about preserving the integrity of our published record, where the great books of our past meet the demands of our digital future,” said Brewster Kahle, founder and digital librarian of the Internet Archive. “This is not merely an individual struggle; it is a collective endeavor for society and democracy struggling with our digital transition. We need secure access to the historical record. We need every tool that libraries have given us over the centuries to combat the manipulation and misinformation that has now become even easier.”

“This appeal underscores the role of libraries in supporting universal access to information—a right that transcends geographic location, socioeconomic status, disability, or any other barriers,” Kahle added. “Our digital lending program is not just about lending responsibly; it’s about strengthening democracy by creating informed global citizens.”

Through CDL, the Internet Archive and other libraries make and lend out digital scans of print books in their collections, subject to strict technical controls. Each book loaned via CDL has already been bought and paid for, so authors and publishers have already been fully compensated for those books; in fact, concrete evidence shows that the Archive’s digital lending—which is limited to the Archive’s members—does not and will not harm the market for books. 

Nonetheless, publishers Hachette, HarperCollins, Wiley, and Penguin Random House sued the Archive in 2020, claiming incorrectly that CDL violates their copyrights. A judge of the U.S. District Court for the Southern District of New York in March granted the plaintiffs’ motion for summary judgment, leading to this appeal. 

The district court’s “rejection of IA’s fair use defense was wrongly premised on the supposition that controlled digital lending is equivalent to indiscriminately posting scanned books online,” the brief argues. “That error caused it to misapply each of the fair use factors, give improper weight to speculative claims of harm, and discount the tremendous public benefits controlled digital lending offers. Given those benefits and the lack of harm to rightsholders, allowing IA’s use would promote the creation and sharing of knowledge—core copyright purposes—far better than forbidding it.”

The brief explains how the Archive’s digital library has facilitated education, research, and scholarship in numerous ways. In 2019, for example, the Archive received federal funding to digitize and lend books about internment of Japanese Americans during World War II. In 2022, volunteer librarians curated a collection of books that have been banned by many school districts but are available through the Archive’s library. Teachers have used the Archive to provide students access to books for research that were not available locally. And the Archive’s digital library has made online resources like Wikipedia more reliable by allowing articles to link directly to the particular page in a book that supports an asserted fact and by allowing readers to immediately borrow the book to verify it. 

For the brief: https://www.eff.org/document/internet-archive-opening-brief-us-court-appeals-second-circuit

For more on the case: https://www.eff.org/cases/hachette-v-internet-archive 

For the Internet Archive’s blog post: https://blog.archive.org/2023/12/15/internet-archive-defends-digital-rights-for-libraries/