Illustration by Alya Al Zaabi

CDL vs. Copyright: The Case Against the Internet Archive

Four major publishers filed a complaint against the Internet Archive two years ago. While the hearing is still underway, this historic and unique case is predicted to have vital effects on future discussions about copyright law in the digital age.

Apr 2, 2023

On June 1, 2020, four major publishers — Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House — filed a complaint against the Internet Archive (IA) for willful mass copyright infringement following the release of its National Emergency Library earlier in the year as part of its Open Library project. Through this motion, the IA’s lending library suspended all waitlists for their available materials for the duration of the national emergency, citing the need for accessible educational materials in a period where libraries were otherwise shut down completely.
This decision received much backlash from authors and publishing companies for the lack of restriction in lending materials and the IA’s apparent lack of sympathy for authors’ monetary compensation. The IA then defended itself in a statement, saying that the National Emergency Library only lent materials to readers for two weeks at a time, with measures similar to ebook publishers to keep further copies from being circulated.
Ebook lending is a primary concern in Hachette v. Internet Archive — the organization identifies itself as a library, and specifically notes its practice of Controlled Digital Lending (CDL) to stave off copyright violations. CDL differs from ebook lending in libraries, in that the latter license ebooks directly from publishers, to then be lent to patrons a certain number of times. The Open Library project, meanwhile, collates scans of existing purchased or donated books, making available what a statement from the IA termed an “accessible facsimile of the printed book” to its users. This is not, however, the first instance of debate surrounding digitization: in 2014, courts ruled in favor of HathiTrust, a Google Books digital preservation initiative whose goal of creating a massive database of searchable text involved a similar method of scanning books.
The dubious legality of the IA’s model stems not from the source of the scans — the original purchase or donation is commonly accepted as an appropriate way for a library to access materials — but the fact that these scanned copies are circulated freely at all in a mimicry of digital piracy. The IA’s invocation of CDL policy — that is, the one-to-one “owned-to-loan” ratio of available copies on the Open Library — is its defense to this claim, though the implementation of the National Emergency Library rendered the point moot by lifting restrictions on lending. The IA alleges that CDL does not violate American Fair Use principles, and highlights a moral importance for libraries to permanently own digital copies of books, rather than just the temporary licenses that publishers offer, to follow through their “traditional role of preservation.”
In July 2022, Authors Alliance submitted an amicus brief expressing authors’ support for CDL, with reasons in favor of upholding it—respectively, a lack of impact on authors’ incentives to create; making their works accessible to readers; preservation of works that are out of circulation, but still protected under copyright; and a powerful research tool. Additionally, the Electronic Frontier Foundation filed a motion for summary judgment to end the lawsuit, reiterating the earlier points regarding legal purchase of books by the IA, its digital lending policies, and their equivalence to physical libraries, and the apparent support for CDL by copyright laws. The brief, according to the publishers, contained very little evidence supporting these claims. The publishers also stated that the IA’s position on CDL was rejected in court.
Federal Judge John G. Koetl, on Mar. 24, 2023, ruled against the IA and found the Open Library’s lending practices to be in violation of copyright protections. The ruling declared that as the organization had created “derivative works” of the original books, they would have needed authorization from the publishers before lending them out in the National Emergency Library. When considering the previous Authors Guild v. HathiTrust ruling, he compared the two in terms of transformative work, highlighting the difference between Google Books creating a searchable database and the IA’s publishing of scanned copies without modification of content. Judge Koetl also dismissed the notion of the IA incentivizing more purchases from publishers as the Open Library made use of already purchased copies for its users.
The IA responded with a statement of intent to appeal Judge Koetl’s ruling.”[The ruling] is a blow for libraries, readers, and authors”, expressed Brewser Kahle, founder of the IA. He also highlighted the need for libraries to sustain their role in society as preservers of books. The statement added that the ruling would not impact many of the Open Library’s services, including interlibrary loans, citation linking, data mining, etc., but made no comment on how it would affect other IA operations, such as the Wayback Machine, which has become a significant archival resource in preserving websites.
Though the fate of the IA is yet unknown, this historic and unique case is predicted to have vital effects on future discussions about copyright law in the digital age.
Amrita is Copy Chief and Deputy News Editor. Email them at
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