Four major US publishers have sued Internet Archive, seemingly for offering unlimited digital book lending through Open Library during the coronavirus pandemic.
Ars Technica reports that in a lawsuit filed on June 1st; Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House have sued Internet Archive, which also owns the Open Library and Archive.org.
The suit ascertains that Internet Archive “engaged in willful mass copyright infringement” due to sharing over 1.3 million scanned books- including those not under public domain.
By using the “Open Library moniker,” the suit also claims Internet Archive’s actions “grossly exceed legitimate library services, do violence to the Copyright Act, and constitute willful digital piracy on an industrial scale.”
While Internet Archive is also a non-profit organization, the lawsuit argues that the group is in-fact a commercial operation thanks to donations, and other companies founder Brewster Kahle owns.
“Moreover, while Defendant promotes its non-profit status, it is in fact a highly commercial enterprise with millions of dollars of annual revenues, including financial schemes that provide funding for IA’s infringing activities.
IA reported more than $150 million of revenue in the last ten years, according to publicly available tax filings. As per its 2017 tax filings, it employed 150 employees. IA’s headquarters are located in an exclusive area of San Francisco. Kahle expanded the IA empire in 2019 by purchasing through Better World Libraries, a shell company he controls, the for-profit Better World Books, an online retailer that predominantly sells used books.
The bulk of IA’s revenue is derived from contributions from large donors, including tens of millions of dollars from the Kahle/Austin Foundation. The Kahle/Austin Foundation is an entity established by Brewster Kahle and his wife to give money to IA and other favored projects. In 2018, the Kahle/Austin Foundation reported assets of $104,483,456. IA also has reported sizeable donations from other large foundations, some of which are based in New York.
IA has an interlocking web of contributions and commercial services that support its Website. In addition to receiving large-dollar donations, IA has made tens of millions of dollars from selling commercial services. One of the services it offers is industrial-scale book scanning and digitization, which has generated more than $25 million in revenue since 2011. IA provides this service to customers nationwide, and as its marketing materials tout, employs a Regional Digitization Manager for customers in the ‘NJ/NY/PA’ area. Upon information and belief, this employee currently resides in New York City. This same employee helped to set up and manage IA’s first digitization center, which was housed for an extended period of time in this District.”
The Open Library began in November 2007, with the goals of providing “a page on the web for every book ever published,” and “to get you as close to the actual document you’re looking for as we can.” It mimics a library in that it lend books, up to the number of physical copies they have in their warehouse.
The waiting lists were lifted in March due to the coronavirus pandemic as part of the “National Emergency Library” initiative. To “serve the nation’s displaced learners,” the suspension was set to “run through June 30, 2020, or the end of the US national emergency, whichever is later.”
Ars Technica proposes while publishers had looked the other way before, this may have been the last straw. Speaking to Ars Technica, Internet Archive Brewster Kahle stated the lawsuit was “disappointing.”
“As a library, the Internet Archive acquires books and lends them, as libraries have always done. Publishers suing libraries for lending books, in this case, protected digitized versions, and while schools and libraries are closed, is not in anyone’s interest.”
Legal experts speaking to Ars Technica stated that Internet Archive’s best defense would be to argue their platform utilized fair use; for review, quotation, and creating a book search engine for example.
It will still reportedly still be an uphill battle, thanks to their unlimited lending. As such, Arc Technica theorizes the defense will likely ask for special circumstances due to the coronavirus pandemic (as many conventional libraries would have been closed).
Copyright law reportedly allows statutory damages up to $150,000 USD per work infringed upon. When considering over 1.3 million books have been scanned, the lawsuit could be up to $195 billion USD. Though we must emphasize, not all of the books are owned by the aforementioned publishers.
Ars Technica also reports the lawsuit could be “billions of dollars,” ruining not just Open Library, but all Internet Archive projects. This would include both archived websites and books that are no longer available being lost to time.
Ars Technica proposes a mildly sunnier outcome. “[The publishers’] goal is to get the Internet Archive to stop scanning their books. If they win the lawsuit, they might force the group to shut down its book scanning operation and promise to not start it up again, then allow it to continue its other, less controversial offerings.”
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Image: Open Library