Statement from Corynne McSherry, Legal Director, Electronic Frontier Foundation

The Electronic Frontier Foundation is proud to join with our co-counsel Morrison and Foerster to represent the Internet Archive in challenging the district court’s ruling in this case.

For centuries, libraries have served their patrons by purchasing books and lending them for free. In the United States, libraries predated the founding of the nation – in fact they contributed to it by improving access to knowledge. Today, libraries serve many purposes, providing Internet access, meeting spaces, and even community pantries. But the heart of their mission remains the same: lending.

What has changed is how that core mission is accomplished. Like copyright law itself, library lending has evolved as new systems and technologies have created new ways to meet patron needs. For the past decade, that evolution has included controlled digital lending—a modern, more efficient version of lending that is used by libraries across the country. Controlled digital lending allows libraries to lend books via the internet subject to strict controls, for a limited time, to one patron at a time.

But four giant publishers claim that this service violates their copyrights and threatens their businesses. They are wrong: Libraries have paid publishers billions of dollars for the books in their print collections. CDL merely helps libraries better serve their patrons, but still lending just one book at a time. It is fundamentally the same as traditional library lending and poses no harm to authors or the publishing industry. In fact, the concrete evidence in this case shows that the Archive’s digital lending does not and will not harm the market for books.

The district court gave short shrift to that evidence, one of many flaws in the ruling. Another was that it concluded that the Internet Archive’s free public library is actually a commercial activity. According to the court, a nonprofit has a commercial purpose if it derives virtually any benefit connected to its a work – including ordinary nonprofit activities like attracting new members, receiving recognition from its community, or having a donate button its website. That definition of “commercial” runs contrary to well-established precedent. What is worse, it would apply to almost every library and public interest organization in the country. It doesn’t make sense.

Our brief explains why the court was wrong, and why controlled digital lending is a lawful fair use. But the core problem is this: The publishers are not seeking protection from harm to their existing rights. They are seeking a new right: the right to take advantage of technological developments to control how libraries may lend the books they own.   

They should not succeed. The Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves. They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world. We are confident the Second Circuit will see that, and rule according.

Leave a Comment