Pandemic-era library programs that helped students access books online could be potentially threatened by an appeals court ruling last week.
Libraries across the country, from Carnegie Mellon University to the University of California system, turned to what’s known as a digital or controlled lending program in 2020, which gave students a way to borrow books that weren’t otherwise available. Those programs are small in scale and largely experimental but part of a broader shift in modernizing the university library.
But the appeals court ruling could upend those programs. Federal judges ruled that the Internet Archive’s pandemic-era online library violated federal copyright law. The Internet Archive, a nonprofit that also runs the popular Wayback Machine that archives websites, digitized thousands of books and loaned them out for free. The specific implications are still unclear. College libraries typically deal with research or out-of-print materials and adhere to different practices.
Still, librarians at colleges and elsewhere, along with other experts, feared that the long-running legal fight between the Internet Archive and leading publishers could imperil the ability of libraries to own and preserve books, among other ramifications. The appeals court ruling comes more than a year and a half after a federal district judge also ruled against the Internet Archive—a decision the organization said was tantamount to “book burning.”
The lawsuit created divides beyond those directly involved, with other publishers, authors and academic groups weighing in. Those in favor of the Internet Archive, including hundreds of authors and several academics, viewed the lawsuit as an attack on libraries in a digital age, and they worry about the future of the organization. Those against the Internet Archive’s practices viewed its activity as piracy.
The concept of digital lending and making materials more accessible remains contentious. When Inside Higher Ed covered the district court ruling in March 2023, several college librarians declined to speak on the record, concerned that the topic would be a lightning rod.
Legal experts are uncertain how much this latest court decision will affect colleges and universities, though they expect institutions to tread carefully. The programs at Carnegie Mellon, Michigan State, the UC system and other institutions—including the University of Florida and the California Institute of Technology—all appear to be operating, according to their respective websites. The institutions either could not be reached or did not respond to requests for comment.
“A lot of people in the academic space and the business space would rather operate as cautiously as possible,” said Stephen Wolfson, assistant general counsel and copyright adviser for University of Pennsylvania Libraries.
Wolfson, who specified he is not speaking on behalf of his institution, said the latest ruling leaves a gray area in the academic lending space.
“If this says the digital lending of books that are otherwise available as commercial ebooks is probably a no-go in all circumstances, well, then, do we take the chance on things not valuable as ebooks?” he said. “Or will publishers find problems with that as well? We don’t know.”
The Lawsuit
The Internet Archive first drew critical scrutiny from the publishing community when it made titles available as ebooks for free in 2020 as part of its new National Emergency Library during the COVID-19 pandemic.
Since it began digitizing books in 2005, the Internet Archive has scanned 4,300 titles a day across 18 locations, according to its website. It also racked up partnerships with several higher educational library systems, including the University of California Press, MIT Press and Cornell University Press, among others.
But launching the National Emergency Library drew the ire of four major publishing houses—Hachette, HarperCollins, Penguin Random House and Wiley—which sued the Internet Archive, claiming it was violating copyright law and the publishing houses had sole rights to distribute those books. They called the offering a “pirate site.”
Publishers offer ebook licenses to libraries that range from two-year licenses to pay-per-use and perpetual licenses, but the Internet Archive never received such licenses for its online lending operation. Since the lawsuit was filed, 50 other publishers, including several university presses, have demanded their books be removed from the Internet Archive’s digital library.
The Internet Archive claimed digitizing the books was covered under a fair use provision of copyright law. As a result of the lawsuit, the Internet Archive claims more than 500,000 titles are no longer available on its site.
The U.S. District Court in Manhattan didn’t accept that argument, ruling in favor of the publishing companies. The Internet Archive appealed the decision, and last week, the U.S. Court of Appeals for the Second Circuit upheld the original ruling.
“IA’s Free Digital Library does not ‘improv[e] the efficiency of delivering content’ without unreasonably encroaching on the rights of the copyright holder; it offers the same efficiencies as publishers’ derivative works while greatly impinging on their exclusive right to prepare those works,” the appeals court said. “While IA claims that prohibiting its practices would harm consumers and researchers, allowing its practices would―and does―harm authors.”
Brewster Kahle, founder of the Internet Archive, wrote in a blog post that the organization is “disappointed” and noted that it is lending books that are “available electronically elsewhere.” His team is reviewing the court’s opinion and will “continue to defend the rights of libraries to own, lend, and preserve books.”
Kahle can appeal the decision to the U.S. Supreme Court.
Dozens of individuals representing several publishing, copyright and author-focused entities, including the Professors and Scholars of Copyright and Intellectual Property Law, the Authors Guild and the International Publishers Association, have made statements or filed briefs supporting the publishing companies.
“If there was any doubt, the court makes clear that under fair use jurisprudence there is nothing transformative about converting entire works into new formats without permission or appropriating the value of derivative works that are a key part of the author’s copyright bundle,” said Maria Pallante, president and CEO of the Association of American Publishers, in a statement to Inside Higher Ed.
University Libraries Could See Impact
While the appeals process upheld most of the district court’s ruling, there was one deviation.
The district court found that the Internet Archive was engaged in commercial activity, despite calling itself a nonprofit. Internet Archive sought donations from the public, received a portion of profit from book sales through its book subsidiary program and gained a nonmonetary, reputational value through its offerings.
But the appeals court found that the Internet Archive’s digital library wasn’t a commercial activity.
“To hold otherwise would greatly restrain the ability of nonprofits to seek donations while making fair use of copyrighted works,” the judges wrote.
Jonathan Band, a copyright lawyer who represents the Association of Research Libraries, said if the district court’s entire ruling had been upheld, the decision could’ve had potentially large ramifications for higher education libraries, many of which are nonprofits. (Note: This article has been updated to correct the library association Band represents.)
“If you start saying what they did was commercial, at that point anything engaged by any nonprofit would be found to be commercial,” Band said.
The American Library Association and the Association of College and Research Libraries both filed briefs stating the Internet Archive’s activity was “clearly not commercial,” though they did not take a further stance on either side of the lawsuit.
Penn’s Wolfson agreed with Band.
“If it had come out otherwise, it could look like practically everything we do is for commercial use,” Wolfson said.
Wolfson and Band did differ slightly on the impact of this latest ruling over all.
Band said the latest ruling—whether it was in favor of Internet Archive or not—wouldn’t have affected higher education libraries, given they work with research papers and scholarly monographs and not the popular titles that were targets of the Internet Archive.
“In this decision, we’re talking about trade books, the mass market books, like best sellers by Stephen King that are in print and available right now for commercial licensing,” Band said. To the contrary, many of the books seen in research libraries are typically not available, either digitally or physically, to the mass market. “These are just older, out-of-print books. They’re not available digitally through some easily accessible platform.”
Jennifer Urban, co-director of the Berkeley Center for Law and Technology, said university libraries’ lending programs differ from Internet Archive in that reader privacy is at the forefront.
In an amicus brief she wrote on behalf of the University of California Berkeley School of Law, along with the Center for Democracy and Technology and the Library Freedom Project, Urban pointed out that libraries minimize data collection and data transfer (transferring only a student’s library card number and book barcode, for example), as well as maintain data security.
“Library-led controlled digital lending incorporates longstanding library values and practices that protect reader privacy and intellectual freedom,” the briefing said. Urban added that commercial aggregators like Overdrive, along with the Internet Archive, “differ sharply from libraries in their incentives and practices regarding reader privacy.”
Wolfson expects higher education to feel minimal, if any, impact because of the small amount of digital lending programs just starting at institutions. But, as students increasingly demand access to online or digital materials, the ruling could stifle further program creation.
“This decision could be used down the road to challenge that sort of activity,” Wolfson said. “It creates an environment where previously you felt OK with lending some things through controlled lending programs—but not everything—but now there’s at least a couple decisions that show it’s problematic for this activity.”
