Clinic Works w/ Amici Kenneth Crews and Kevin Smith to Support Internet Archive’s Controlled Digital Lending Efforts

Last week, the Cyberlaw Clinic filed an amicus brief in the United States District Court for the Southern District of New York in support of Internet Archive (“IA”) a non-profit digital library working to provide access to cultural artifacts of all kinds. The Clinic filed the brief on behalf of amici curiae Kenneth D. Crews and Kevin L. Smith, library and information scholars and historians with significant expertise on libraries and archives. The brief supports IA in a case filed against them by book publishers, alleging that IA’s controlled digital lending (“CDL”) program infringes their copyrights.

CDL allows a library like IA to circulate digital copies of books in place of physical ones in a controlled manner. The library can only circulate as many copies of a book as it physically owns and is required to maintain a 1:1 ratio of owned to loaned copies. Four publishers—Hachette, HarperCollins, Wiley, and Penguin Random House—are suing IA in the case. IA, represented by the Electronic Frontier Foundation, argues that its conduct is not infringing, that CDL is not a means to threaten publishers’ businesses, and that it helps ensure the public can make use of the books that libraries have bought and paid for.

The Smith and Crews brief, filed in support of IA’s motion for summary judgment, highlights libraries’ long history of promoting a more egalitarian, democratic, and civically engaged society. Although early libraries were seen as “elitist and inaccessible bastion[s] of knowledge,” American public libraries, especially in the face of rising fascism and totalitarianism, “gradually opened their doors to more patrons irrespective of race, gender, age, or class background.” These nineteenth and twentieth century expansions in access—much like their twenty-first century counterpart, CDL—did not go uncontested. On the contrary, the development of the lending library and the advent of the free public library were met with significant pushback. Despite these obstacles, concerted national efforts to provide equal access to information for a broader range of citizens persisted.

The brief highlights new problems presented by the digital age: “some members of the public have limited access to digital resources; others have difficulty accessing physical spaces.” The brief argues that a ruling against IA, especially in an era rife with misinformation and extremism, would seriously impede a long-running process of development and diversification within libraries. To continue to democratize information access, the brief contends that “libraries must continue to meet patrons where they are; in the present day, that means the Internet.”

Five other amici or groups of amici filed briefs as well, many of which either oppose plaintiffs’ motion for summary judgment or express support for defendants’ motion for summary judgment:

• • Michelle M. Wu, a former professor and Law Library Director at Georgetown recognized as the originator of the legal theory underlying CDL, asks the Court to reject plaintiffs’ argument that CDL is categorically not fair use, and, whatever decision the Court reaches, to narrow its holding to the particular facts and circumstances before it.

• • Intellectual property law professors, whose research and teaching focus on copyright law, emphasize the special consideration that libraries’ noncommercial, non-profit uses receive in a fair use analysis. Their brief argues that non-profit library lending serves important democratic interests and is presumptively not harmful to markets in which the copyright owner has a legitimate interest.

• • Library Futures Institute, The EveryLibrary Institute, and ReadersFirst, all non-profits focused on issues affecting libraries, ask the Court to protect CDL because it is a reasonable method of expanding equitable access to information that is grounded in both the law and in the library community, it is a service that preserves investment taxpayers make in library collections, and the licensed digital lending market prevents libraries from preservation and providing equitable access to information.

• • Authors Alliance, a non-profit that seeks to advance the interests of authors who want to serve the public good by sharing their creations broadly, asserts that CDL maintains copyright’s balance of interests and does not reduce financial incentives for authors, promotes broad public availability to books, ensures that books are preserved, and facilitates author research.

• • Copyright scholars, who share a deep knowledge and interest of copyright law, contend that copyright law entitles libraries to lend lawfully made copies without interference from copyright holders, and CDL constitutes fair use because it effectuates digital library lending without any cognizable copyright harms.

The publishers opposed some, but not all, of the motions for leave to file amicus briefs; all motions have now been granted.

Cyberlaw Clinic students and summer interns Tara Ahluwalia, Mariah Bellamoroso, Hiba Ismail, Mina Kim, Elena Guanuna Lehenbauer, Abigail Liles, Annie Tao, and Joon Yoon worked on this brief, collaborating closely with the Clinic’s Managing Director, Chris Bavitz, and with the amici. The Clinic looks forward to Court’s decision in this case.

Image, Library with hanging bulbs, courtesy of Unsplash user Janko Ferlič, available at https://unsplash.com/photos/sfL_QOnmy00, license terms at https://unsplash.com/license.