In June 2020, four of publishing’s “Big Five” filed suit against the Internet Archive (“IA”) for copyright infringement. The suit was indirectly in response to IA’s National Emergency Library (“NEL”), a digital library that Brewster Kahle, IA’s eccentric billionaire founder, had established several months earlier to help students, educators, and researchers access digital versions of the print materials made inaccessible by the COVID-19 pandemic. The NEL was an expansion of IA’s Open Library, which had been loaning out digital scans of books for years. The NEL, however, did away with the Open Library’s waitlists in order to make any book available to any reader whenever they wanted. Kahle promised the library would be open until the crisis was over or until June 30, 2020, whichever came first.
Typically, a library wishing to offer e-books to patrons must go to the publisher for a license, who allows the library to loan out the e-book a certain number of times or for a certain amount of time. As practiced by Internet Archive, controlled digital lending (“CDL”) CDL proposes an alternative or supplement to these licenses, which usually costs the library much more in fees and renewals than purchasing a print copy would. Rather than go to the publisher to purchase and renew access to e-books, a CDL-practicing library would scan a book already in its collection and loan out the scan instead of the physical copy.
Proponents of CDL defend the practice as both beneficial and legal. CDL, they argue, allows libraries to provide greater access to their collections and specifically to the books that are still under copyright but lack an official and/or licensable e-book. In addition, CDL’s proponents argue the practice is well-within the boundaries of copyright law as per 17 U.S.C. § 109 and/or 17 U.S.C. § 107.
Unsurprisingly, the publishers and authors who rely on the revenue generated by e-book sales and licenses tend to think CDL is neither beneficial nor legal. After the initial wave of support for the NEL died down in March, authors like Colson Whitehead and Neil Gaiman voiced their disapproval of the Open Library’s “piracy” and recounted their struggles to get their works taken down from the site through the Internet Archive’s notice-and-takedown system. The Association of American Publishers described the NEL as “a cynical play to undermine copyright, and all the scientific, creative, and economic opportunity it supports.”
The culmination of this disapproval was the June 1st suit, filed in the Southern District of New York by Hachette, Harpercollins, John Wiley, and Penguin Random House. Calling CDL “an invented paradigm that is well outside copyright law,” the publishers accused Kahle and the Internet Archive of “seek[ing] to destroy a carefully calibrated ecosystem that makes books possible in the first place—and to undermine the copyright law that stands in its way.” In addition to a declaration of infringement, the publishers asked the court for an injunction against the Internet Archive and the destruction of all “unlawful copies” therein.
Citing the publishers’ complaint, Kahle closed the National Emergency Library earlier than planned, but fired back at the publishers’ Complaint with an Answer that described the Internet Archive as “a Library of Alexandria for the twenty-first century that, thanks to digital technologies and the Internet, excels in a way the Library of Alexandria never could.” He went on to deny the publishers’ allegations but demurred from defending CDL beyond asserting that it is not infringement.
As the parties enter into discovery, it seems reasonable to predict that CDL and its legality will take center stage in the brewing court battle. It will be interesting to see if and how the court deals with CDL and, in particular, the argument that the practice is legal fair use. I can’t imagine the publishers will give up their licensing revenue without a fight, and I expect fair use’s fourth factor (“the effect of the use upon the potential market for or value of the copyrighted work”) will be hotly contested.
 Id. 17 U.S.C. § 109 pertains to the first sale doctrine, which allows an owner of a book, for example, to lend or give away that book. 17 U.S.C. § 107 governs the fair use doctrine, which exempts certain types of copying/use from infringement.
 Complaint at 40, 7, Hachette v. Internet Archive, No. 1:20-cv-04160 (S.D.N.Y 2020)
 Id. at 51.
 http://blog.archive.org/2020/06/10/temporary-national-emergency-library-to-close-2-weeks-early-returning-to-traditional-controlled-digital-lending/; Answer at 1, Hachette v. Internet Archive, No. 1:20-cv-04160 (S.D.N.Y 2020).
 17 USC § 107 (4)