SF’s Internet Archive battles ‘digital book burning’ lawsuit

The Internet Archive isn’t able to purchase e-books directly, but rather digitalizes versions of physical books they own, creating a resource for everyday readers and academics, as well as vision-impaired and dyslexic readers. However, a lawsuit from publishers Hachette, Penguin Random House, Wiley and HarperCollins puts that future access at risk.

The Internet Archive’s method of distribution is called controlled digital lending, in which only one copy of the book is available to be checked out at a time. The Internet Archive began the practice in 2011 and, to keep publishers at bay, the Archive has a moratorium on titles published in the last five years.

“It keeps with the basic library practice of what libraries do. We buy books, we preserve books, and we lend books. And we support the publishing industry and authors through this process,” says Internet Archive founder Brewster Kahle.

When the pandemic began in 2020 and libraries closed for safety reasons, the need for e-book access increased, so the Internet Archive shifted its methods. One hundred libraries signed a statement of support to for expanding the level of distribution, which was called the National Emergency Library Act. At that point, the Internet Archive’s lending ratio grew above the one-to-one level of controlled digital lending, such that they were sharing more books than they physically owned. 

“These are not best sellers. These are library books, the sorts of things you’d use for homework,” says Kahle. “Publishers are trying to dial time back and say no, you can’t have access to anything that we’re not going to license you to read right now.”

The program lasted for 14 weeks, ending two weeks early in mid-2020 due to the lawsuit filed by the four aforementioned publishers. Should the lawsuit succeed, the Internet Archive would potentially be forced to destroy a large swath of books from the 20th century that are not available elsewhere.

“They’re looking for a digital book burning of millions of books,” says Kahle. “During the heyday of Germany in the 20th century, they destroyed 25,000 books. We have a new scale that’s being demanded. That’s what they’re after, tens of millions of dollars in damages.”

In addition to the destruction of the books, the publishers are asking for $19 million in damages — despite not claiming the lending process causes financial harm (the Archive’s yearly budget is $20 million, which seems large until compared with the $170 million budget of the SF Public Library). Kahle believes the motivation is control of access to digital materials, with publishers able to determine who, where, when and which readers can access digital books, and take them offline at any time. 

“It’s ironic that the internet was trying to build something with more democratic access to information and put more power in people’s hands,” he says. “But what it’s turned out is this control mechanism that allows publishers to reach into your machine — your Kindle, your computer, your library, and make things disappear or change.”

Last week, the Internet Archive submitted summary briefs for a motion to have the case dismissed. On July 13, amicus briefs will be presented to the court, which the publishers are looking to block. The process will continue with court dates in September and October. Kahle doesn’t expect it to go to trial, but rather anticipates a preliminary judgement to be announced in 2023 (which either party will likely appeal).

The consequences of the ruling are still far off, but Kahle sees it as an existential threat to free access to information. The decision could have ripple effects regarding the ownership of digital artifacts, which he claims would be in jeopardy due to licensing issues.

“They want to make it so that in the online world, every reading event is a licensed and permissioned event,” says Kahle. “It’s a little Orwellian, and they’re actually doing this.”