Internet Archive’s Open Library Faces Uncertain Future After Court Sides With Publishers

Attorneys representing the Internet Archive are determining their next steps to try to save the website’s free e-book lending program after an appeals court recently upheld an earlier ruling that it violated copyright laws.

Four major publishers sued the San Francisco-based Archive in 2020 when the website temporarily removed waitlists so more than one person at a time could borrow an e-book in its collection during the pandemic. The publishers — Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House — alleged that by doing so, the Archive illegally offered free e-books, including famous works by authors such as Sylvia Plath and Toni Morrison.

The Internet Archive later reinstated its waitlists and returned to its one-to-one book rental model, known as “controlled digital lending,” where a library owns a book, scans it digitally and loans the digital copy to one user at a time. The Archive owns physical copies of all of the books it lends digitally, stored in a warehouse in Richmond, California. Since the lawsuit started, however, it has had to remove more than 500,000 titles online.

Now that the court has sided with the publishers in the appeal case, the Internet Archive is determining what direction the fight might go next.

“We are reviewing the court’s opinion and will continue to defend the rights of libraries to own, lend, and preserve books,” Chris Freeland, director of library services at the Internet Archive, wrote online in response to the opinion.

The organization in June launched an online petition to restore the hundreds of thousands of titles that were removed from its online collection. As of Monday, it had 110,000 signatures.

“It’s growing by the minute,” Freeland told KQED. “The public has spoken, and they are really upset that those books are no longer available for them to borrow.”

As for legal next steps, the Archive has two pathways it may choose to take, according to Cara Gagliano, senior staff attorney for the Electronic Frontier Foundation, which is representing the Archive in court. They can either petition for a rehearing, or petition the U.S. Supreme Court to hear the case, an even more intense process, since the court only takes a handful of cases per year.

“We think the Internet Archive really was serving a transformative purpose and doing what libraries have always done: Loaning out books that they owned to one person at a time,” Gagliano said. “Our take is that it’s absurd that the Internet Archive is allowed to mail me a physical book it owns. The physical publishers can’t stop that. But [the Archive] can’t give me the same content in digital form.”

The recent ruling will not disrupt the Internet Archive’s other major service, the Wayback Machine, which saves webpages from across the internet over decades. However, groups representing librarians, authors and open-source advocates say that losing the e-book lending program is a blow to free educational access.

“We think this decision will result in a meaningful reduction in access to knowledge. This is sad news for many authors who have relied on Internet Archive’s Open Library for research and discovery, and for readers who have used Open Library to find authors’ works,” wrote the Authors Alliance in a blog post responding to the ruling.

Marshall Breeding, a consultant on library technology who has been following the Hachette v. Internet Archive case, has a different take. E-book lending is already a widespread practice at public libraries across the country “in a big way already, and that has nothing to do with the Internet Archive,” Breeding said. “This is not the end of libraries.”

Publishers and authors agreeing with them meanwhile celebrated the ruling.

“Today’s appellate decision upholds the rights of authors and publishers to license and be compensated for their books and other creative works and reminds us in no uncertain terms that infringement is both costly and antithetical to the public interest,” said Maria A. Pallante, President and CEO, Association of American Publishers, in a statement following the decision.