A lawsuit is threatening the Internet Archive — but it’s not as dire as you may have heard

The Internet Archive spent years testing the boundaries of copyright law. Has it gone too far?

The Internet Archive (also known as IA or Archive.org), home to the giant vault of internet and public domain history known as the Wayback Machine, is currently facing a crisis — one largely defined by misinformation. A group of publishing companies filed a scathing copyright lawsuit earlier this month over the IA’s controversial attempt to open an “Emergency Library” during the coronavirus pandemic. Ever since, confusion about the scope of the lawsuit and its potential impact on the IA as a whole has stoked fears of a crackdown on the IA’s many projects, including its gargantuan archive of the historical internet.

But much of that fear seems to be exaggerated. And while the lawsuit is a big deal for advocates of an open internet, it’s probably not the existential threat to the IA that you may have heard it is.

The Internet Archive is a preservation project — but some publishers think it’s piracy

The Internet Archive is a nonprofit internet archival organization. Founded in 1996, it digitally preserves more than 1.4 million books and historical documents, as well as cached versions of websites captured over a long period of time. Its most famous project is the Wayback Machine, a digital collection of roughly 390 billion pages dating back to 1996. It’s the deepest archive of internet history in existence. Among the IA’s other projects is the Open Library, a virtual library that allows users to freely borrow digital copies of books that are uploaded and archived through the project — both books in the public domain and books under copyright.

As my colleague Constance Grady recently explained, the Internet Archive owns physical copies of all the books it digitizes and claims the right to loan out the digital copies, as long as no more than one digital copy of a book is in circulation at a time. The IA’s right to do so has been endorsed by many librarians and legal experts. But many critics of this approach, especially those within the publishing industry, have long argued that the IA’s Open Library is piracy because it distributes books as image files rather than appropriately licensing the works and compensating authors. Additionally, politicians like North Carolina Sen. Thom Tillis, a Republican who chairs the Senate Judiciary Committee’s Subcommittee on Intellectual Property, have attacked the Internet Archive as a way to argue for more stringent copyright laws.

In March, the Internet Archive pushed its already dubious reading of the law even further by temporarily easing its lending restrictions amid the pandemic to allow multiple people to check out the same digital copy of a book at once. The IA dubbed this temporary change the “National Emergency Library.” The IA’s description of what this change meant wasn’t very clear, but in the very last line of a blog post announcing the Emergency Library, it clarified that after the “US national emergency” ended, “The waitlists will be reimplemented thus limiting the number of borrowable copies to those physical books owned.” In other words, while the Emergency Library was underway, IA would loan out more digital files than it actually owned.

By any stretch of the law, that rises to the level of copyright infringement, even though the illegal copies were being shared only temporarily. Whether you view that type of infringement as unethical is a different issue; as the Internet Archive argued, “The idea that this is stealing fundamentally misunderstands the role of libraries in the information ecosystem.”

Publishers predictably found this logic unconvincing. On June 1, Hachette, Penguin Random House, HarperCollins, and other publishers sued the IA, claiming that both the regular Open Library and the Emergency Library are forms of piracy. The IA responded by ending the Emergency Library project on June 16, days after the lawsuit was publicly announced, asking that “the publishers call off their costly assault.” It’s unclear whether the move will actually lead to the suit’s withdrawal. The publishers’ legal representatives referred Vox to the Association of American Publishers, which includes the plaintiffs in the lawsuit. When reached for comment, a representative for the Association shared the group’s statement concerning the suit, which calls the IA “brazen” and “self-serving” and notes that the lawsuit “reflects widespread anger among publishers, authors, and the entire creative community regarding IA’s actions and its response to objections.”

The lawsuit asks the court for two main things: damages for publishers’ copyrighted works, and both a preliminary and permanent injunction of the IA’s digitization and lending processes. That all sounds dire for the Internet Archive’s future. But there seems to be lots of confusion about what the lawsuit’s actual impact on the organization and its various projects will be — and it’s not as bad as previous media reports have indicated.

Rumors of the Internet Archive’s potential demise have been greatly exaggerated

When news of the lawsuit first broke, much of the reporting surrounding it was hyperbolic and alarmist. “A win for the publishers could easily bankrupt the Internet Archive,” reported Ars Technica. “The [suit] puts one of the internet’s largest repositories of knowledge in peril,” reported Vice, which also noted that supporters of the IA’s various preservation projects were already rushing to try to create backups of the entire archive.

All of this would reasonably give the impression that the publishers’ lawsuit seeks to permanently halt the entire Internet Archive and all of its projects, even the ones that have nothing to do with its book-lending program. What’s more, most of the early reporting about the lawsuit incorrectly claimed that plaintiffs were seeking damages for millions of books in the IA’s giant vault. “If the court finds that Internet Archive ”willfully” infringed copyright,” tech site Decrypt claimed, “the library could be on the hook for up to $150,000 in damages—per each of the 1.4 million titles. (You do the math.)”

Such a sweeping injunction or financial devastation would destroy the IA, and with it the unique and vast records of the Wayback Machine. As a huge repository of internet history, digital record-keeping, and sociocultural trends, the Wayback Machine is essentially irreplaceable — which is why, as news of the lawsuit spread, many of the IA’s supporters were devastated and concerned about the lawsuit potentially destroying its work, especially the Wayback Machine.

But there’s a big problem with all of this — none of it is true.

What is true is that the lawsuit asks for a court injunction against the Internet Archive — but it only asks for a halt to the practice of copying books for loan in the Open Library itself, not the entire IA. And while the IA’s supporters might decry the demise of the library itself — after all, a permanent injunction against digitizing works under copyright would decimate the library, though public domain books would remain available — the lawsuit takes pains to clarify that the publishers aren’t trying to shut down the rest of the Internet Archive.

“Internet Archive provides a number of services not at issue in this action, including its Wayback Machine and digitization of public domain materials,” reads the suit’s complaint.

Then there’s the concern that the lawsuit asks for potentially debilitating financial damages from the archive. If it were true that the publishers claimed $150,000 for each of the millions of books digitized, that could certainly paralyze the entire nonprofit organization.

But in fact, the lawsuit seeks financial damages only for the sharing of 127 books under copyright, including titles like Gone Girl, A Dance with Dragons, and The Catcher in the Rye. If the court awards the plaintiffs the maximum amount provided under the law, the most the Internet Archive would have to pay would be $19 million — essentially equivalent to one year of operating revenue, according to IA tax documents. That’s a huge setback, but for the IA, a tech nonprofit that relies heavily on grants and public donations, it’s not the major death blow it might seem to be.

When asked about its funding reserves, Internet Archive founder Brewster Kahle told Vox that “beyond the monetary damages, the publishers are asking for the destruction of 1.4 million books, many of which do not exist in digital form anywhere else. That would be a real tragedy for people who depend on us for access to information.” He declined to comment further on the issue of funding.

The lawsuit might not destroy the IA, but it could hamper the aims of an “open internet”

All that said, a win for the plaintiffs in the lawsuit certainly isn’t ideal.

Much of the confusion and fear that this lawsuit could wipe out the Internet Archive reflects the fragile and ephemeral nature of internet culture, where entire websites can be wiped out overnight if their content isn’t backed up. In the Wayback Machine’s case, the organization provides access to a vital, 10-petabyte collection of internet history. Nothing else is archiving the internet but the Internet Archive itself. If something happens to it, it’s gone for good. And because of that anxiety, the conversation around the lawsuit has left the original copyright debate far behind — even though the lawsuit itself limits its focus to the IA’s Open Library only.

Speaking to Vox’s sister site The Verge, Kahle said the lawsuit was “disappointing” and argued that all of the books in the IA’s library have been uploaded legally:

As a library, the Internet Archive acquires books and lends them, as libraries have always done, Kahle told The Verge. This supports publishing and authors and readers. Publishers suing libraries for lending books — in this case, protected digitized versions, and while schools and libraries are closed — is not in anyone’s interest.

We hope this can be resolved quickly, he continued.

Kahle told Vox that the organization was “confident in our legal position.”

“When nonprofit libraries have been sued in the past for helping their patrons access their collections, courts have ruled that they were engaging in fair use, as in the HathiTrust case,” he said.

While plenty of confusion remains about whether the IA’s Open Library constitutes a legitimate library — and whether its noble purpose justifies some of its more piratical methods — most people agree that its aims are noble. Many of the initiative’s supporters see the IA as a vanguard of the “open internet.” That’s the broad philosophy of free and equal internet access that governs foundational parts of internet culture like open-source coding, Open Access scholarship, the Creative Commons, and the Internet Archive itself.

Kahle touched on this spirit of openness and cooperation, telling Vox, “We need collaboration between libraries, authors, booksellers, and publishers ... We hope for an amicable solution for libraries, authors, booksellers, and publishers because our information health depends on it.” He’s increasingly been joined in his archival efforts by prominent IA supporters. On Monday, the Association of Research Libraries issued a statement asking the publishers to drop the lawsuit.

“For nearly 25 years,” the Association’s statement reads, “the Internet Archive (IA) has been a force for good by capturing the world’s knowledge and providing barrier-free access for everyone, contributing services to higher education and the public, including the Wayback Machine that archives the World Wide Web, as well as a host of other services preserving software, audio files, special collections, and more.”

Because the Internet Archive is a well-established vanguard of open access, the lawsuit could potentially have a larger, chilling effect on internet archival and research practices — even if it fails, and even if that wasn’t the original intent. Let’s hope that the publishing industry can also recognize the Internet Archive as a force for good, before the lawsuit renders it a cautionary tale.

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