The Open Library project, a service offered by the Internet Archive, has seen a dramatic reduction in its capacity to lend digital books globally. This change follows a recent US district court decision that favoured major publishing companies in a copyright infringement lawsuit against the Internet Archive. As a result, over 500,000 e-books have been removed from availability, significantly impacting users worldwide.

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In a public statement, the Internet Archive described the court’s decision as a “devastating loss“. The organisation is currently appealing the ruling in hopes of reinstating full access to the removed content. The Internet Archive maintains that its services do not negatively affect e-book sales and are not in violation of any specific laws. Notably, digital copies remain accessible to patrons with print disabilities.

Petition calls for a reversal of the decision

A burgeoning online movement has also emerged in response to the court’s decision. Nearly 25,000 people have signed a petition started by the IA’s librarian on Change.org, advocating for the restoration of the removed books. In a statement on the site, Chris Freeland acknowledged the importance of protecting authors’ rights and ensuring fair compensation for their work, but added that there “is a way to achieve these goals while still allowing libraries to do what they have always done—help readers read.”

Adding to the irony of the situation, the Internet Archive noted on its X social media account that it had planned to highlight George Orwell’s “1984” as an example of the dangers of restricted access to information. However, this book too has been withdrawn from their lending library as a direct consequence of the lawsuit.

What is controlled digital lending?

Since its founding in 1996, the Internet Archive has ramped up its digital preservation efforts from the initial Wayback Machine to include a vast archive of software, video, games, and books. This expansion led to the creation of the Open Library in 2006, which adopted the model of controlled digital lending (CDL) — a practice embraced by swathe of public and academic libraries to allow for book lending to those affected by geographical or physical barriers.

The lawsuit, initiated in 2020 by four major publishers — Hachette, HarperCollins, Wiley, and Penguin Random House — argued that the Internet Archive’s practices were siphoning revenues from e-book licensing and violated copyright laws. Maria Pallante, president and CEO of the Association of American Publishers, critiqued CDL in a 2022 interview with Publishers Weekly, calling it “a baseless justification for infringement.”

In early 2024, a district judge ruled against the Internet Archive, finding that the digital lending of books did not fall under the legal protections of first-sale or fair use doctrines. This ruling has not only affected the four plaintiffs but also had implications for around 40 other publishers involved in the lawsuit.

Internet Archive set to present at appeal

Looking ahead, the Internet Archive is set to present its oral arguments for the appeal on June 28, 2024. Brewster Kahle, founder of the Internet Archive, previously stated the crucial role of the organisation in providing access to information, especially during the pandemic when many physical libraries were closed. He said that “more than one hundred shuttered libraries signed a statement of support asking that the Internet Archive do something to meet the extraordinary circumstances of the moment.”

The lawsuit demands that the Internet Archive destroy 1.4 million digitised books, which it says it legally acquired and scanned in cooperation with dozens of library partners. 

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“If the publishers win this lawsuit, then every instance of online reading would require the permission and license of a publisher. It would give publishers unprecedented control over what we can read and when, as well as troves of data about our reading habits,” Kahle said.

Journalist and founding editor of publication Flaming Hydra, Maria Bustillos, argues that the Internet Archive is a library, and that publishers were seeking to turn libraries into a literature version of Netflix. “The trouble with this is that it will basically nuke libraries out of existence, because, in order to perform their traditional role in the work of cultural preservation, libraries must own their own collections,” she wrote.