Lower Court Ruling vs. Internet Archive Blocks Public Access to Information: Amicus Brief

The March ruling by the U.S. District Court for Southern New York against digital lending library Internet Archive “could profoundly affect longstanding protections for reader privacy and thus affect a core purpose of copyright: public access to information,” said an amici brief (docket 23-1260) Wednesday in the 2nd U.S. Circuit Appeals Court from the Center for Democracy & Technology, Library Freedom Project and Public Knowledge in support of the nonprofit Internet Archive.

Four book publishers -- Hachette, HarperCollins, Wiley and Penguin Random House -- sued IA, a digital lending library, in 2020, in a copyright infringement case (docket 1:20-cv-04160). The publishers claimed IA has cost them millions of dollars and is a threat to their business.

In March, the court ruled against IA, holding it liable for copyright infringement of plaintiffs’ works, saying it worked “in active concert and participation with the Open Library of Richmond,” which scanned physical books and made them available to the public on IA's website under a “books to borrow” collection. Terms of the monetary judgment payment were confidential and conditioned on IA’s right to appeal.

On Aug. 11, U.S. District Judge John Koeltl for Southern New York entered an injunction against IA in connection with 127 covered works, enjoining it from distributing them to the public in any digital or electronic form (see 2308150012). Koeltl narrowed the scope of “covered works” of the injunction in a second order to extend to books that are “commercially available for sale or license in any electronic text format.”

Copyright is a “means by which an important public purpose may be achieved,” namely, “to allow the public access” to knowledge by balancing authors’ interests against “society’s competing interest in the free flow of ideas [and] information,” said the amici brief, citing Sony Corp. of America v. Universal City Studios. It is “well settled” that the copyright system ultimately serves “the purpose of enriching the general public through access to creative works,” it said, noting Fogerty v. Fantasy, Inc.

In ruling against the Internet Archive, the district court didn’t consider one of controlled digital lending’s (CDL) key benefits, that it preserves libraries’ ability “to safeguard reader privacy,” said the brief. With CDL, libraries digitize their own physical materials and loan them on a “digital-to-physical, one-to-one basis with controls to prevent redistribution or sharing,” it said. CDL’s benefits to libraries include increasing accessibility for people with disabilities or limited transportation, improving access to rare and fragile books, facilitating interlibrary resource sharing and “protecting reader privacy,” it said.

The brief contrasted CDL with commercial digital lending options that “fail to protect reader privacy” and “threaten it.” Such options include for-profit commercial entities that aggregate digital content from publishers and license access to the collections to libraries and their patrons, plus e-book platforms that provide content for reading devices, mobile apps and browsers.

The commercial actors “track readers in intimate detail,” surveilling “what readers browse, what they read, and how they interact with specific content -- even details like pages accessed or words highlighted,” said the brief. That data may then be shared with third parties, it said. That leaves readers “vulnerable to data breaches by collecting and retaining vast amounts of sensitive reader data,” it said. “Ultimately, surveilling and tracking readers risks chilling their desire to seek information and engage in the intellectual inquiry that is essential to American democracy,” the brief said.

Readers shouldn’t have to choose between their privacy or digital access to information, said the brief, and libraries shouldn’t be forced to impose that choice on readers. CDL “provides an ecosystem where all people, including those with mobility limitations and print disabilities, can pursue knowledge in a privacy-protective manner,” it said. CDL also allows libraries to protect patron privacy in the digital world “as they have for decades in the physical world,” it said.

The First Amendment protects the right to receive information and engage in free inquiry as a “necessary predicate to the recipient’s meaningful exercise of his own rights of speech, press, and political freedom,” said the brief, citing Board of Education, Island Trees Union Free School District No. 26 v. Pico, which found unconstitutional the school board’s decision to remove books from libraries due to their content.

CDL allows libraries to “transition to digital lending while maintaining their longstanding commitment to the strong reader privacy protections that allow the public to confidently access information and engage in intellectual inquiry,” said the complaint. “Without the CDL option, readers would pay for the benefits of digital lending at the cost of their intellectual privacy,” undermining copyright’s “overarching purpose of increasing public access to information,” it said.