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Controlled Digital Lending and the Internet Archive

Introduction to Controlled Digital Lending

The dramatic changes that COVID-19 elicited amongst not only the general public, but also digital services, challenged the perception of products that are deemed accessible. COVID-19 adjusted the basic foundations of commerce in which social services, such as libraries, had to find new ways to approach the spectrum of becoming more accessible. The Hachette Book Group v. Internet Archive (2020) 1:20-cv-04160 is the first lawsuit that challenged the concept of libraries being able to transition physical books into digital format. Moreover, the Hachette Book Group v. Internet Archive (2020) 1:20-cv-04160 case also explores about how an actual library should function. Specifically, the Hachette Book Group Inc v. Internet Archive (2020) 1:20-cv-04160 case looks at the delicate nature of the Controlled Digital Lending program and its capability of transferring physical cultural artifacts into a digital library format.

What is Controlled Digital Lending?

So, one might ask, what exactly is the Controlled Digital Lending program? To start off, Controlled Digital Lending is intertwined within the copyright segments of law. The program is implemented by libraries, in which, libraries are allowed to loan print books to digital patrons in a lend like print fashion. Importantly, through the Controlled Digital Lending program, libraries should adopt an own-to-loan ratio even with digitalized books. Depending on how libraries implement the Controlled Digital Lending program, they may have more leeway on their products according to copyright law. Controlled Digital Lending importantly allows libraries to grow their e-section database of literature when needed.  

Controlled Digital Lending expands further from these simplistic concepts. Firstly, in order to digitize books, libraries must acquire the physical copies legitimately whether it’s obtained through a gift or a purchase.  Through this procurement, the owners of the printed works are compensated for their financial differences. The second component of Controlled Digital Lending is the shifting of physical copies to digitalized copies. The basics of format-shifting is to make content more accessible for either research or mobile functionality. Furthermore, Controlled Digital Lending Programs allows libraries to format their physical copies into digital copies in a controlled manner. Even with digitalized books, libraries must follow the own-to-loan ratio, in retrospect to the number of physical copies they legitimately acquired. In essence, Libraries, when using the Controlled Digital Lending Program, can only issue to customers, the number of legitimately acquired copies, even if it is of digital format. Thus, when libraries want to transfer their physical copies to a digital format, they must loan the exact number of digital copies that they acquired legitimately from their physical form. This becomes a challenge for digital library groups such as the Internet Archive, to legally maneuver through the minefields of copy right infringement. With being considered a library, the Internet Archive is protected by the fair use doctrine. However, here the challenges of digital library groups such as the Internet Archive, which resides as the defendant in the Hachette Book Group v. Internet Archive are affected by the controversies of whether or not they legitimately acquired digital copies of literature work.

What is the Internet Archive?

Starting in 2006, the Internet Archive has become an important advocate for digital media and digital publishing because it is an online library that focuses on bolstering free products that range anywhere from eBooks to music. They act as a non-profit library under the 501(c)(3) exemption. This exemption makes the Internet Archive a charitable organization, in which they do not promote their own self-interests. They’ve developed the slogan “one web page for every book published.” As a result of their slogan, the Internet Archive tries to preserve cultural artifacts especially in times of crises. During the COVID-19 pandemic, the Internet Archive sought to use the National Emergency Library method in their guidelines, as a way for digitalized materials, such as books, to become more accessible to the general public. The National Emergency Library was implemented by the Internet Archive to specifically improve the accessibility of books to researchers, teachers, and students, and so on. The program started on March 24, 2020 and ended on June 16, 2020 and disregarded the own-to-loan ratio of the Controlled Digital lending program. Through the National Emergency Library, the Internet Archive digitized approximately 1.4 million books according to Jill Lepore (2020). Through the change of the library’s guidelines, they were able to provide more accessibility to those in need. This action that the Internet Archive took, allows users to freely access the necessary books for those who aren’t able to afford them. However, the controversy becomes, whether or not the Internet Archive genuinely had the right to upload these works of literature, even though the Internet Archive was digitalizing literature for public accessibility.

Due to the transferring of documents to digital format through scanning, the Internet Archive was sued by the Hachette Book Group for copy right infringement and misconduct. The Hachette Book Group claimed that the Internet Archive created massive copyright infringement by publishing works without authorization or legitimately acquiring the physical copies of Hachette, Harper Collins, Penguin Random House, and Wiley’s fiction and nonfiction literature (Hachette book group members). The Hachette Book group claims this action of format shifting is done illegally and without permission.

How is the Hachette Book Group challenging the Internet Archive?

 The Hachette Book Group believes that the Internet Archive made them lose compensation over the illegally uploaded books. Hachette & company further questions the invented theory of Controlled Digital lending as to how the Internet Archive portrays it. Moreover, through this claim, the Hachette Book Group disregards the attempt of the Internet Archive to preserve cultural elements and considers the Internet Archive’s actions to be infringing upon the copyright act. The Hachette Book Group further claims that the Internet Archive exhausted its rights of the fair use doctrine with the implementation of the National Emergency Library, even though the fair use doctrine allows libraries to use portions of copyrighted literature without the permissions of the owner.

Following the claims about copyright infringement, the Hachette Book Group claims the Internet Archive is slandering the name of public libraries by misrepresenting the public through the means of how they acquire digital material. Little is still known about how the Internet Archive acquired their materials due to the case being a year old.  Furthermore, the Hachette Book Group views the Internet Archives actions as damaging the persona of public libraries and are exploiting publishers from their hard-earned money. While the Internet Archive does want people to buy the publishers books if they can, the Hachette Book Group are more worried about free riders. Through this theory, the Hachette Group argues that the Internet Archive is a creator of nothing and does not value the works of scholars. The Hachette Group further challenges the Internet Archive through their implemented National Emergency Library system. They complain that the Internet Archive change of policy towards the own-to-loan ratio, condoned the illegal acts of copyright infringement.

How the Internet Archive is responding to being sued:

In the Hachette Book Group, Inc. v. Internet Archive (2020) case no: 1:20-CV-04160-JGK, the Internet Archive responded to the Hachette Book Group by stating that were attempting to buy, collect, preserve, and share common cultural interests as any library does. The Internet Archive argues that they were backed by the funding of the National Endowment for the Humanities, the National Science Foundation, and federal government institutions such as the Museum and Library Services. From this perspective, the Internet Archive also inclines that they are sheltered by the fair use doctrine.

Takeaways from the case:

The Hachette Book Group lobbied themselves as the group who was being harmed by the Internet Archive’s actions, suing the Archive for copyright infringement. The Internet Archive argues that its Controlled Digital Lending program allows for the format-shifting of physical copies to the digital format. The Archive further argues that they are helping to nurture those who cannot access public libraries during COVID. However, with the way the Internet Archive implemented the National Emergency Library, the Internet Archive was challenged by copyright infringement and became more vulnerable to piracy, even if they were format shifting for the greater good.

The Hachette Book Group Inc v. Internet Archive (2020) 1:20-cv-04160 case is still ongoing today. The case will challenge how Open Libraries, such as the Internet Archive, transfer their physical copies to digital material. The National Emergency Library ameliorated the need for publishers to take action against the Internet Archive for their supposed misconduct. However, most importantly, this case will provide a stare decisis on whether copyright law is more important to uphold than to promote the progress of making cultural artifacts such as literature, accessible as possible in times of need.