Will the Open Library be Forced to Close?

The Wayback Machine is a well-known resource to law school journal editors and many other people. For editors, it is a tool to confirm the accuracy of claims cited using webpages that are no longer accessible or behind a paywall.¹ But the Wayback Machine is just one project from the nonprofit Internet Archive.² The organization seeks to archive as much knowledge on its servers as it can get ahold of so that it can “provide Universal Access to All Knowledge.”³ This knowledge includes webpages, books, texts, images, audio recordings, videos, and software programs.⁴ It is a virtual anthropological horde. But some of that information is undoubtedly going to be copyrighted material. That is where the Internet Archive has had some legal troubles.

The goal of the Open Library is much the same as Internet Archive as a whole. The Open Library shares information with humankind by lending out books, similar to a library.⁵ But unlike a regular library, which is limited to a geographic region, the Open Library is only limited to the internet, which is to say it is nearly limitless.⁶ The Open Library’s goal is not only to grant knowledge but to save it. Books that might otherwise be forgotten are saved forever in what could eventually be the world’s largest library.⁷ It uses a theory called Controlled Digital Lending.⁸ The Open Library uploads a scanned version of a book it has acquired, which happens through donations⁹ or sponsorships,¹⁰ and allows anyone to reserve and take out that book.¹¹

Recent trouble began during the Covid-19 Pandemic. Many traditional libraries and other educational resources were initially closed or hard to access. The Open Library initiated a program called the National Emergency Library, which suspended its waiting list to allow multiple people to access individual books in its database.¹² The Open Library planned to keep the initiative open for the duration of the pandemic.¹³ However, publishers, who already viewed the project as an act of public piracy, condemned the effort. Four publishers filed a lawsuit in the Southern District of New York against Internet Archive.¹⁴

The plaintiffs in the lawsuit are targeting both the National Emergency Library initiative and the Open Library as a whole. With 1.3-1.4 million books of copyrighted material on its virtual shelves, the plaintiffs believe the Open Library’s “piracy” is no small matter.¹⁵ The plaintiffs argue that unlike regular libraries, the Open Library’s system destroys the book publishing industry because it fails to compensate copyright holders for the work, which in turn disincentivizes writing and publishing books at all.¹⁶ The initiative exacerbates this problem during an already difficult time for the book industry.¹⁷ As their Complaint puts it, “[f]ree is an insurmountable competitor.”¹⁸ The publishers accuse the Open Library of essentially being bad-faith actors who mislead the public and know their actions are illegal. Many authors have voiced support for the lawsuit and are frustrated by the loss of income.¹⁹

The claim is that the Open Library’s actions violate copyright law because it does not have the copyright holders’ permission to transpose the book, even if they are legally owned, to another format.²⁰ These different book mediums are not interchangeable, despite how the Open Library treats them.²¹ Terms of ownership of a print book versus a digital book are usually different.²² Furthermore, the Open Library does not pay publishers licensing fees which traditional libraries pay.²³ The plaintiffs formally argue two causes of action, Direct and Secondary Copyright Infringement both under 17 U.S.C. §101.²⁴ The relief they are seeking includes an injunction and damages.²⁵

After criticism from the publishing industry and others, Internet Archive posted a detailed response, for the benefit of the apprehensive public, as to why it created the National Emergency Library.²⁶ Later, in response to the lawsuit, Internet Archive posted a short response on its website.²⁷ It is “disappointed” with the lawsuit and asserts it is doing nothing wrong.²⁸ The lawsuit “is not in anyone’s interest,” the statement reads, especially during the pandemic when access to books is limited.²⁹

Internet Archive filed an Answer to the Complaint.³⁰ It denies most of the plaintiffs’ claims.³¹ It does not believe its actions are significantly different than that of a regular library.³² Furthermore, Internet Archive asserts seven affirmative defenses to the allegations.³³ Those related to copyright law are Fair Use (17 U.S.C § 107), First Sale Doctrine (17 U.S.C § 107), and Safe Harbor (17 U.S.C. § 512(c)).³⁴

Soon after the suit, the Open Library ceased its policy.³⁵ But the lawsuit is not moot because its central theory concerns the Open Library’s general practice as copyright infringement. The initiative was just the provoking force for the publishers to sue.

Interestingly, many of these same publishers have recently been involved in a class-action lawsuit, similarly filed in the Southern District of New York, for collaborating with Amazon to drive up e-book prices.³⁶ Behavior like this could be a motivating factor behind Internet Archive’s entire mission. While such evidence may not be admissible in the Internet Archive lawsuit, especially because it is an antitrust rather than copyright issue, it is an interesting piece of background information that informs the context of the lawsuit.

Despite the circumstances under which this lawsuit has come about, its issues are part of a long battle of what information should be accessible and to whom.³⁷ It is an exchange of whether the internet should be an open place and information should be exchanged freely versus the desire to protect intellectual property in a way that rewards creators.³⁸  Internet Archive is not the only website trying to promote an open source vision of the internet, however the question is how the entity will be a part of judicial and legislative answers.

Chani Morgenstern is a Second Year Law Student at the Benjamin N. Cardozo School of Law and a Staff Editor at the Cardozo Arts & Entertainment Law Journal. Her interest in books began from a young age and has varied greatly in genre since then. She spends most of her reading time now on casebooks and journal articles but hopes to change that this year.