Internet Archive’s Open Library and Copyright Law: Addendum

By Carolyn Wimbly Martin and Nick Feldstern

As the COVID-19 crisis continues, royalty-free access to digital content remains a concern for academics at all levels of research and instruction. The Internet Archive copyright dispute, however, came to a head this month when Hachette Book Group Inc., HarperCollins Publishers LLC, John Wiley & Sons Inc. and Penguin Random House LLC filed a copyright infringement lawsuit against the organization’s “Open Library” and National Emergency Library project. (Hachette Book Group, Inc. et al v. Internet Archive et al., Case Number 1:20-cv-04160 (S.D.N.Y. June 1, 2020)). In the filing, the cohort of publishers claimed that the Internet Archive’s actions “grossly exceed legitimate library services” and “constitute willful digital piracy on an industrial scale.”

On June 10, 2020, the Internet Archive announced that it would prematurely end its National Emergency Library project and return to its traditional controlled digital lending. The organization lamented the publishers’ attack on digital lending and expressed faith in the digital lending framework.

Although the Internet Archive voluntarily terminated the National Emergency Library, the publishers’ lawsuit will likely proceed. In addition to the Emergency Library, the complaint addresses several core features that predate COVID-19, including controlled digital lending, discussed in our previous blog post, and differentiates the Internet Archive from traditional libraries. As copyright law continues to evolve alongside the Internet, this will certainly be a case to watch.