Even Free Libraries Come With a Cost; The National Law Review, September 13, 2024

  Anisa Noorassa of McDermott Will & Emery , The National Law Review; Even Free Libraries Come With a Cost

"The US Court of Appeals for the Second Circuit affirmed a district court’s judgment of copyright infringement against an internet book archive, holding that its free-to-access library did not constitute fair use of the copyrighted books. Hachette Book Group Inc. v. Internet Archive, Case No. 23-1260 (2d Cir. Sept. 4, 2024) (Menashi, Robinson, Kahn, JJ.).

Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House (collectively, the publishers) brought suit against Internet Archive alleging that its “Free Digital Library,” which loans copies of the publishers’ books without charge, violated the publishers’ copyrights. Internet Archive argued that its use of the publishers’ copyrighted material fell under the fair use exception to the Copyright Act because Internet Archive acquired physical books and digitized them for borrowing (much like a traditional library) and maintained a 1:1 ratio of borrowed material to physical copies except for a brief period during the COVID-19 pandemic.

The district court reviewed the four statutory fair use factors set forth in § 107 of the Copyright Act:

• The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
• The nature of the copyrighted work.
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
• The effect of the use upon the potential market for or value of the copyrighted work.

The district court found that Internet Archive’s use of the works was not covered by the fair use exception because its use was non-transformative, was commercial in nature due to its solicitation of donations, and was disruptive of the market for e-book licenses. Internet Archive appealed.

The Second Circuit affirmed, addressing each factor in turn."

Internet Archive Court Loss Leaves Higher Ed in Gray Area; Inside Higher Ed, September 9, 2024

  Lauren Coffey, Inside Higher Ed; Internet Archive Court Loss Leaves Higher Ed in Gray Area

"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...

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."

Internet Archive forced to remove 500,000 books after publishers’ court win; Ars Technica, June 21, 2024

 ASHLEY BELANGER, Ars Technica; Internet Archive forced to remove 500,000 books after publishers’ court win

"As a result of book publishers successfully suing the Internet Archive (IA) last year, the free online library that strives to keep growing online access to books recently shrank by about 500,000 titles.

IA reported in a blog post this month that publishers abruptly forcing these takedowns triggered a "devastating loss" for readers who depend on IA to access books that are otherwise impossible or difficult to access.

To restore access, IA is now appealing, hoping to reverse the prior court's decision by convincing the US Court of Appeals in the Second Circuit that IA's controlled digital lending of its physical books should be considered fair use under copyright law."

Amicus Briefs Filed in Internet Archive Copyright Case; Publishers Weekly, March 25, 2024

 Andrew Albanese , Publishers Weekly; Amicus Briefs Filed in Internet Archive Copyright Case

"Internet Archive lawyers filed their principal appeal brief on December 15, and 11 amicus briefs were filed in support of the Internet Archive a week later, in December, representing librarians and library associations, authors, public advocacy groups, law professors, and IP scholars, although some of the IA amicus briefs are presented as neutral.

The briefs are the latest development in the long-running copyright infringement case and come a year after a ruling by judge John G. Koeltl on March 24, 2023 that emphatically rejected the IA’s fair use defense, finding the scanning and lending of print library books under a protocol known as “controlled digital lending” to be copyright infringement.

The Internet Archive’s reply brief is now due on April 19, and oral arguments are expected to be set for this fall."

The Top 10 Library Stories of 2022; Publishers Weekly, December 9, 2023

Andrew Albanese, Publishers Weekly; The Top 10 Library Stories of 2022

PW looks back at the library stories that captivated the publishing world this year, and what they portend for 2023

"1. Attacks on the Freedom to Read Escalate

In 2022, a pernicious wave of politically motivated book bans continued to surge in local library and school districts across the nation, with the overwhelming majority of book challenges involving LGBTQ authors and themes or issues of race and social justice. And as a new year approaches, observers say the attacks on libraries and schools are only intensifying.

The numbers tell a disturbing story. In April, the ALA’s Office for Intellectual Freedom released its annual report on banned and challenged books, announcing that it had tracked some 729 challenges involving 1,597 individual titles in 2021—the highest number of challenges since ALA began compiling its most-challenged-books lists 20 years ago. And during Banned Books Week in September, the ALA reported that the number of challenges through the first eight months of 2022 was on pace to shatter the already-record-breaking numbers from 2021...

2. State Legislators Take Aim at Libraries and Schools

In 2022, threats to the freedom to read escalated at the state level as well as the local level, with a host of new state measures targeting the work of libraries.

In March, Florida governor Ron DeSantis signed HB 1467,which mandates a public review of all public school instructional material, including library books, part of suite of laws signed under the guise of parental rights. In Tennessee, legislators passed HB 2666, which, among its provisions, vests the state’s textbook commission (rather than local decision makers) with final authority over whether challenged works can remain in school libraries. In Kentucky, lawmakers passed SB 167, which critics say will politicize library boards by giving local elected judges broad control to appoint members and veto power over large expenditures.

In Missouri, Secretary of State Jay Ashcroft proposed a vague new “Protection of Minors” rule for libraries that would prohibit state funds from being used for materials deemed to “appeal to the prurient interests of any minor.” The new rule follows the passage of SB 775, a recently enacted state law that threatens criminal charges for Missouri librarians and teachers found to have provided “explicit sexual material” to students. In November, PEN America reported that fear of prosecution under the new law has already led librarians and educators to pull some 300 titles across 11 school districts.

And in a proposal sure to get publishers’ attention, Texas state representative Tom Oliverson proposed HB 338, a bill that would require publishers to create an “age appropriate” rating system for books sold to Texas school libraries, while also giving state officials the power to direct publishers to change ratings state officials disagree with, and to bar schools from doing business with publishers that do not comply.

3. Congress Holds Hearings on Book Bans, Introduces a Bill to Support School Librarians

The surge in book bans and legislative attacks on the freedom to read didn’t only register at the state and local levels in 2022—it captured the attention of Congress as well.

In April, the U.S. House of Representatives’ Subcommittee on Civil Rights and Civil Liberties held a hearing on the coordinated attacks on the freedom to read in libraries and schools, and in May held a second hearing focused on schools. At the second hearing, held on May 19, chairman Jamie Raskin, a Democrat from Maryland, forcefully condemned new state laws seeking to ban books and prohibit the discussion of certain allegedly divisive subjects, like critical race theory and the LGBTQ community, calling such efforts “the hallmark of authoritarian regimes.” The laws, Raskin concluded, “are being used to undermine public faith in public schools and destroy one of the key pillars of our democracy.”

Meanwhile, two lawmakers this fall introduced a bicameral bill designed to support school libraries and protect school librarians. Introduced on October 6 by Rhode Island senator Jack Reed and Arizona representative Raúl Grijalva, both Democrats, the Right to Read Act (S 5064 and HR 9056) would authorize $500 million in grants to states to support school libraries in underserved areas. And, crucially, it would also extend “liability protections” to teachers and school librarians, which supporters say is a direct response to the rise in state laws threatening them with civil actions and criminal charges simply for making books available to students.

The bill was welcome news for school librarians, even though with just days left before the end of the 117th Congress it is all but dead on arrival. Advocates say the legislation lays down an important marker for federal action and will be reintroduced in 2023."

PRH, Internet Archive Clash Over ‘Maus’; Publishers Weekly, February 15, 2022

Calvin Reid, Publishers Weekly; PRH, Internet Archive Clash Over ‘Maus’

"However, Lisa Lucas, senior v-p and publisher of Pantheon Schocken, the PRH division which publishes Maus, denies the allegation. In response, Lucas emphatically denied the claim. “That is not true,” she said, framing the issue around copyright concerns rather than consumer demand. “Art Spiegelman has never consented to an e-book of Maus," Lucas said. "Therefore, PRH asked the Internet Archive to remove the PDF and stop pirating Maus because it violates Art Spiegelman’s copyright.”

Although best known for its collection of public domain titles, the Internet Archive also offers a lending library of more than 2 million modern titles “not in the public domain,” Freeland said. IA offers digital lending of these titles under a controversial policy called Controlled Digital Lending, or CDL, in which IA scans the book and lends out a PDF of the title, one copy per lender at a time, much like a physical book.

In June 2020, four publishers, including PRH, filed a lawsuit against the IA charging it with copyright infringement. The case is still working its way through the courts."

Internet Archive to Publishers: Drop ‘Needless’ Copyright Lawsuit and Work with Us; Publishers Weekly, July 23, 2020

Andrew Albanese, Publishers Weekly; Internet Archive to Publishers: Drop ‘Needless’ Copyright Lawsuit and Work with Us

"During a 30-minute Zoom press conference on July 22, Internet Archive founder Brewster Kahle urged the four major publishers suing over the organization’s book scanning efforts to consider settling the dispute in the boardroom rather than the courtroom.

“Librarians, publishers, authors, all of us should be working together during this pandemic to help teachers, parents, and especially students,” Kahle implored. “I call on the executives of Hachette, HarperCollins, Wiley, and Penguin Random House to come together with us to help solve the challenging problems of access to knowledge during this pandemic, and to please drop this needless lawsuit.”

Kahle’s remarks came as part of a panel, which featured a range of speakers explaining and defending the practice of Controlled Digital Lending (CDL), the legal theory under which the Internet Archive has scanned and is making available for borrowing a library of some 1.4 million mostly 20th century books."

Reforming Digital Lending Libraries and the End of the Internet Archive; Jurist, July 20, 2020

Binit Agrawal, Jurist; Reforming Digital Lending Libraries and the End of the Internet Archive

"The lack of certainty relating to the legality of CDL as fair use is hampering its growth by creating a chilling effect. Libraries are under the fear of costly litigations. IA itself is under the risk of bankruptcy, as the publishers are not inclined to take back their suit, even after IA stopped ELP. This is the very problem section 108 intended to resolve. Hence, it is pertinent that the section is amended to meet the needs of the digital age and provide certainty in this regard. Some countries have already moved in this direction. While Canada has permitted a limited right to provide digitized copies to patrons of other libraries, the EU has been considering proposals to allow digitization of cultural heritage institutions, including libraries."