Now Is Not The Time For Publishers to Go After Online Libraries: Hachette Book Group, Inc. v. Internet Archive

Nothing better promotes the progress of science and the arts than access to knowledge, especially during a global pandemic. COVID-19 has highlighted how our society has changed in the past few decades and how much it needs to change in the decades to come. As schools and workplaces, law firms included, went partially or completely remote, connectivity and access to online resources became more important than ever. It is in this environment that several publishers chose to bring litigation against Internet Archive (IA) in Hachette Book Group, Inc. v. Internet Archive

Open Library is a non-profit digital library founded by IA that offers online access to more than 1.3 million books that it has digitized into a PDF format. Operating under the Controlled Digital Lending (CDL) model, Open Library lends out only as many books as it has physical hardcopies of. Essentially, the basis of CDL is that a book must be owned to be loaned.  

CDL stands on two legs of the Copyright Act: the first sale doctrine in Section 109 and the exceptions for libraries and archives in Section 108. The first sale doctrine permits anyone who owns a copy of copyrighted material to sell, display, or dispose of that material without the copyright holder’s permission. This allows all libraries to operate and loan books to patrons without the threat of suit from publishers. Section 108 provides that, under certain conditions, “it is not an infringement of a copyright for a library or archives … to reproduce no more than one copy or phonorecord of a work … or to distribute such a copy.”

In March 2020, IA relaxed its usual digital lending restrictions while physical access to local libraries were limited or eliminated. In response, several publishers sued, claiming “IA opportunistically seized upon the global health crisis to further enlarge its cause, announcing with great fanfare that it would remove these already deficient limitations that were purportedly in place.” With physical libraries closed, IA argued it was providing a necessary public good, a lifeline, that must take priority over any meager potential loss to the publishers.

In April 2020, a Congressional Services Report highlighted that since stay-at-home orders were issued, libraries were facing significant challenges meeting demands for e-books. As the report detailed, physical books and e-books are governed differently. The first sale doctrine allows libraries to lend books freely after purchase without infringing on the publisher’s copyright. However, publishers may limit the number of times and for how long a library may lend out an e-book. As Open Library’s copies are not e-books—they are digitized scans of physical books—the licensing rules of e-books (which are books “in digital format”) should not govern. While publishers must be rewarded for the hard work they put into their products, the economic effects of online libraries to their bottom-line are de-minimis and unlikely to hinder the commercial success of the publishers’ books.

Online libraries are more important than ever. Millions who lost their employment during the pandemic—many of whom are low-income workers—tried to learn new skills, but with local libraries shut down, this became difficult. Students who depended on libraries for access to the books they need were likewise disadvantaged. To address disruptions to essential goods caused by the pandemic the federal government relaxed many regulations. The FDA relaxed regulations on the manufacturing of hand sanitizers so that liquor distilleries can produce them. The government even relaxed some HIPAA and medical practice licensing regulations. Online libraries should also be allowed to relax their restrictions during the pandemic when the best practice to avoid spreading COVID-19 is to stay at home.

This is not the first time, nor will it be the last, that publishers go after online libraries. But as courts have repeatedly stated in cases interpreting the Copyright Act—such as in Bill Graham Archives v. Dorling Kindersley, Ltd., Authors Guild v. Google, Inc., SARL Louis Feraud Int’l v. Viewfinder Inc., and MCA, Inc. v. Wilson—courts must balance the benefit the public will derive from the permitted use of copyrighted material against the economic concerns of the copyright holder.

Ultimately the question (and answer) is simple: Is the goal of copyright law—to promote the progress of science and useful arts—better served by allowing IA’s relaxed lending restrictions?  Yes.

Nayram S. Gasu (LAW ‘21) is a third year law student at Temple University Beasley School of Law.

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