• by Wendy Davis  @wendyndavis, December 15, 2023

The nonprofit Internet Archive on Friday urged a federal appellate court to rule that digitizing books and then lending one ebook at a time online doesn't infringe copyright.

Online lending “serves libraries’ mission of supporting research and education by preserving and enabling access to a digital record of books precisely as they exist in print,” the Internet Archive contends in papers filed with the 2nd Circuit Court of Appeals.

The organization writes that its “controlled digital lending” program -- which involves digitizing books and lending one digital version for each print version that was scanned -- is “substantively the same” as traditional library programs that loan print books to people.

Koeltl's ruling came in a complaint brought in 2020 by Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House, which sued the Internet Archive over two different initiatives -- the 12-year-old “controlled lending program,” and the “national emergency library,” which only operated during the initial phases of the COVID-19 pandemic.

Unlike the “controlled” program, the "emergency" initiative offered downloads of the same scanned hard copy to multiple users at once.

The publishers contended in their lawsuit that both programs were unlawful, arguing that copyright principles don't allow the Internet Archive to copy and distribute digital book files.

The Internet Archive is urging the appellate court to find that both programs are protected by fair use principles, but devotes the bulk of its argument to the controlled, one-to-one lending program. 

“Publishers claim this public service is actually copyright infringement,” the Internet Archive argues, referring to one-to-one lending. “They ask this court to elevate form over substance by drawing an artificial line between physical lending and controlled digital lending,” the group adds.

Among other arguments, the group says the initiative is “transformative,” given that digital loans are more efficient than physical lending.

“Controlled digital lending is transformative because it expands the utility of books by allowing libraries to lend copies they own more efficiently and borrowers to use books in new way,” the group argues.

The Internet Archive adds that its lending program enables “better and more efficient access to library books ... for rural residents with distant libraries, for elderly people and others with mobility or transportation limitations, and for people with disabilities that make holding or reading print books difficult.”

The Internet Archive added that its activity was noncommercial -- which is another factor courts consider when evaluating fair use.

The organization says the “undisputed facts” show it “receives no profit or other private benefit -- financial or otherwise -- from its free digital library. The group adds that it doesn't have revenue-generating ads on its site, and spends “millions of dollars of its own funding to pay for books, equipment, personnel, and storage to lend its books for free.”

The nonprofit makes a similar argument regarding the emergency program, writing: "With libraries inaccessible during the shutdown, copyright's purpose of promoting public availability of knowledge was significantly hindered, justifying emergency measures."

The publishers are expected to file their response in February.