The Internet Archive is in a legal fight for its life. A courtroom battle kicked off by major book publishers over its digital book lending program is proceeding to its next stage. Because the Archive has, for decades, served as key infrastructure for thousands of online communities — including zine authors and publishers who have relied on its servers for free hosting and bandwidth — the potential fallout is massive. And yet, the significance of the lawsuit is even larger as it poses important questions about who gets to say how information is shared.
Historically, copyright holders have been able to issue a limited set of restrictions over their works. Once a copy of a book (or a movie, or a painting, or a zine) has been sold, the buyer has a wide berth to do what they want with that copy, including reading and rereading but also reselling or loaning it out. That idea is in some ways the cornerstone of modern libraries: publishers sell the library a copy of a book, and then libraries do their thing with it. And for readers, this is simply what we call “owning a book.” This lawsuit is the next arena in the debate over whether that model will persist in a digital age. In practice, publishers offer a different and more restrictive worldview: instead of outright selling a copy of a book to a library (or even just a reader), they offer a license to that book that can in turn be restricted. Under this model, libraries can loan books not because it is their right, but because they have been granted permission, and that permission can come with terms.
Among libraries, the Internet Archive is an unusual institution. Due in part to its position as an independent non-profit and in part to its founding values, it has been willing to take informed and aggressive actions on behalf of its users, from challenging FBI requests to taking advantage of the fair use doctrine to preserve and host media that might otherwise be lost. In this case, and others, it has done so with the legal support of the Electronic Frontier Foundation, a non-profit law firm where Archive co-founder Brewster Kahle serves on the board (and where, full disclosure, I formerly worked on policy issues including copyright and privacy, but not this case).
In that spirit, the Archive has operated a pioneering digital lending service on the terms that libraries always have. In order to do so, it uses a model called “controlled digital lending.” If you’ve taken out an ebook from your public library, you’ve engaged in some version of it: a copy of the text is allocated to a user for a set period of time, and when that term has expired, that copy is rendered inaccessible.
The Archive’s innovation came in combining that industry standard with its book digitization efforts. In those cases, the Archive scans a copy of a book, and then carefully stores that copy in a warehouse. That physical copy is thus taken out of circulation, while the scanned version — which is more accessible to readers with disabilities, among other benefits — is sent into controlled lending. This program has attracted dozens of library partners since 2011 and includes more than three million books. Publishers may have grumbled, but nobody challenged the program.
In March of 2020, that uneasy peace boiled over. As the onset of the pandemic shuttered schools and libraries all over the world, the Archive launched a program called the National Emergency Library, temporarily uncoupling digital copies from their talismanic physical equivalent. The argument is straightforward: people stuck at home and working or studying remotely need access to books, and the institutions that typically provide them are unavailable. At the same time, the logic of each digital copy being tied to a physical copy in storage worked in the Archive’s favour, as pandemic closures of libraries took some 650 million books out of circulation.
Hachette, HarperCollins, Wiley and Penguin Random House sued. The Archive ended the National Emergency Library after just two months in June of 2020, but the publishers would not stand down, pursuing litigation in the two years since. The Archive has even presented evidence that the publishers suffered no financial harm from the program, but they appear determined to fight nonetheless. For the publishers, it doesn’t seem to be about any particular program, but about stopping any challenge to its permission-based licensing model.
Even with a strong fair use case, even with attorneys working pro bono, the costs associated with litigation can be overwhelming. There is the possibility of ruinously high damages that could be awarded if a judge finds in the publishers’ favour. For the Internet Archive, this is not just an existential struggle for its own survival but a fight over the future of media ownership.
In a world where the Internet Archive could not operate, the public would suffer an immeasurable loss. Beyond its bottomless database of zines, it hosts a dizzying array of media, including taped concerts, corny government PSAs, software manuals, runnable programs built for early personal computers, historical seed and farm catalogues, hundreds of thousands of 78 RPM records, and of course the Web itself, backed up in the mystifying “Wayback Machine.” As commercial digital media services already become more restrictive or dismantled altogether, the Archive grows more essential with each blow.
It’s often been observed that, if public libraries didn’t exist, they could not be invented today. The Internet Archive has for decades aimed to disprove that idea, re-inventing the library to empower its patrons — the public — in a digital age. As this case winds its way through the legal system, that vision may face its ultimate test.
Parker Higgins is an artist and activist who has worked for the past decade on issues surrounding technology and speech, most recently at the Freedom of the Press Foundation. He lives in Brooklyn and tweets at @xor.
