Why the Internet Archive copyright fight is likely to end very badly. Media Nation:

Just as copyright law, I’m afraid Internet Archive — one of the most treasured corners of the Internet — is about to fall off a cliff, taking our access to countless old websites, newspapers and other content with it.

Let me explain. A federal judge in Manhattan on Monday heard opening arguments in a lawsuit filed by four major book publishers alleging that the Internet Archive is violating copyright law by digitizing books in its possession and making them available for free. Blake Britain reports According to Reuters, the proceedings did not appear to go well for the Archive, with US District Judge John Koeltle asking “tough questions”.

“You’re avoiding the question of whether the library has a right to reproduce a book that it otherwise has a right to possess, which is really at the heart of the case,” Koeltle reportedly told Archives attorney Joe Gratz. “Publisher has copyright to control reproduction.” Yeeks.

The archive increased its lending during the COVID-19 pandemic and has not reduced it, even though life has more or less returned to normal. The archive claims to do what any library does; it borrows the books it owns, and controls how many people can borrow a book at any given time. In other words, it doesn’t just make electronic versions of its books available for mass download. It may indicate some desire on the part of the Archive to act responsibly, but it does not make it legal.

In contrast, a library usually buys one or more hard copies of a book and lends them, or buys the right to provide e-books to its readers. The operative word in both cases is “going”. Money changes hands. Publishers and authors are compensated. Buying a hard copy of a book, digitizing it for no extra charge, and then lending it out is illegal, regardless of whether the lending is controlled or not. It’s amazing to me that the Archive would jeopardize its entire free service over such an obviously wrong position.

“If this behavior is normalized, the Copyright Act will have no meaning,” said Maria Palante, executive director of the Association of American Publishers. said (free link) Erin Mulvaney and Jeffrey A. Trachtenberg of The Wall Street Journal. Indeed, the Journal story notes that Google won its own legal battle against Google Books by only limiting what you can find to excerpts from books, not the entire text.

I must mention that the Archive is not without its powerful friends. The Electronic Frontier Foundation provides legal assistance. Additionally, Inside Higher Ed posted a comment written by a number of Archive supporters who argue that the Archive is a legitimate library and that its “controlled digital lending” system, which limits lending to one user at a time, is covered by the fair use clause of copyright law.

“The argument that the Internet Archive is not a library is fallacious,” says an Inside Higher Ed essay. “If this argument is accepted, the results will jeopardize the future development of digital libraries across the country.”

Oh, and by the way. Inside Higher Ed limits users to five free articles a month before you have to pay for a subscription, which of course it has every right to do.

I searched my own books and found that two out of three, “Little People” (2003) and “String City” (2013), are available for loan. I don’t mind. Whatever economic value they had is long gone, and if someone wants to read them for free without using a traditional library, fine. But I would certainly be against them for the first two years after publication. Rodale paid me a decent advance on Little People, which funded the time off I took to research and write. The Wired City is published by the University of Massachusetts, an academic publisher that survives sales to libraries, both in print and electronically.

The Internet Archive is a godsend. I recently used it to look up the original version of a New York Times editorial that was suggestive Sarah Palin’s defamation lawsuit fails. The archive has also digitized almost all print publications Boston Phoenix By arrangement with Northeastern University, copyrighted through the generosity of the late publisher Stephen Mindich. Along with Wikipedia, the Archive is one of the last uncorrupted places on the Internet.

Ideally, I would like to see the Archives work out an agreement with book publishers that would limit, but not shut down, its book lending program. But my fear is that this is going to end very badly.