Controlled Digital Lending Ruled Not a Fair Use in Internet Archive's "Open Library"
In the digital age where information flows freely, the clash between copyright protection and access to knowledge has become increasingly prominent. One such battle has recently unfolded between publishing giant Hachette (and other major publishers) and the Internet Archive, a non-profit digital library aiming to provide universal access to books.
The Internet Archive boasts an "Open Library" project, which seeks to create a comprehensive digital library that is accessible to all. Through its initiatives, the Internet Archive has digitized millions of books and made them available to users worldwide. For some time, the Open Library was administered under a “Controlled Digital Lending” model, where the Internet Archive purported to limit the number of available digital copies to correspond with the number of physical copies that either the Internet Archive or its partner libraries owned. In theory, the physical books were taken out of circulation when the digital ones were checked out, but it is unclear how well this policy was enforced. During the COVID-19 pandemic, to implement a “National Emergency Library,” the Internet Archive suspended its 1:1 restriction on the number of available digital copies, making particular digital books available to thousands of users at a time, regardless of how many physical copies it owned.
While the Open Library project may sound noble, the crux of the legal dispute arises from the legal status of these digitized works and their distribution. Hachette and the other publishers have argued that the Internet Archive's actions infringe upon their exclusive rights, while the non-profit claims its activities fall under the fair use exemption. Internet Archive contends that by providing digital access to out-of-print and hard-to-find books, it fulfills a crucial societal function, promoting educational and cultural advancement.
Publishers like Hachette additionally have argued that the Internet Archive's actions have threatened the economic viability of the publishing industry. They maintain that the digitization and distribution of copyrighted books without explicit permission undermines the incentives for authors and publishers to create and publish new works. They argue that allowing mass digitization and unrestricted access to copyrighted material will have far-reaching consequences on the publishing ecosystem, discouraging investment in the production of new literary works.
On March 24, 2023, the District Court for the Southern District of New York ruled that the Internet Archive committed copyright infringement through its Open Library initiative. The ultimate conclusion was that the Internet Archive’s practice of purchasing a book and subsequently making unauthorized copies and distributions of the work is illegal and not protected by fair use, even in a Controlled Digital Lending context. Internet Archive vowed to appeal this decision but has yet to do so as the parties are continuing to work together to assess the damages of this case. Updates will be made as they come.