Internet Archive Sets Fair-Use Bait With Open Library Lending

Here's the most important thing I've learned about intellectual property law: the lawyers who say "yes" when you ask if you can do something are much, much more expensive than the lawyers who say "no".

Brewster Kahle, the founder, and through a foundation, the funder, of the Internet Archive, can afford a very expensive lawyer. He sold Alexa to Amazon for about $250 million of Amazon stock. He'll need that expensive lawyer; on Tuesday, the Internet Archive announced that its Open Library had started to facilitate the lending of out-of-print (but in-copyright) digitized books, a move that seems designed to spur a legal reaction from publishers.

To some extent, this isn't really news. Kahle has been advocating digital lending of books for some years now. In 2001, he published an article in D-Lib Magazine advocating the use of Inter-Library Loan (ILL) for digital materials. In October, the Internet Archive unveiled its Bookserver software, whose goal was to enable the lending of digital materials over the internet, and the University of Toronto was one of the original partners in its development.

The lending library announcement was also modest in scope. The big numbers were associated with programs unlikely to stir any controversy. Over a million out-of-copyright works are available, and Open Library has integrated access to the 70,000 ebooks licensed to subscriber libraries through Overdrive. Only 187 of the available books fall into the category of un-licensed out-of-print but in-copyright books.

In another sense though, the announcement, which was fed directly to the Wall Street Journal, was a declaration of war on barriers to fair use of digitized books. From the Journal's article:

The effort could face legal challenges from authors or publishers. Paul Aiken, the executive director of the Authors Guild [...] said "it is not clear what the legal basis of distributing these authors' work would be." He added: "I am not clear why it should be any different because a book is out of print. The authors' copyright doesn't diminish when a work is out of print."

Mr. Kahle said, "We're just trying to do what libraries have always done."

Having to receive prior permission from a copyright owner in order to scan a book is onerous, said Mr. Blake, of the Boston Library. "If you own a physical copy of something, you should be able to loan it out. We don't think we're going to be disturbing the market value of these items."

Stewart Brand, author of the 1988 book "The Media Lab"—one of the scanned books that will now be available for loan—said he didn't mind seeing his title made available this way. Mr. Kahle at the Internet Archive asked his permission, he said, and he gave it because he thinks digitizing books has the potential to improve knowledge.

The fact that at least one author was asked for permission suggests that the Archive is being very careful about what it chooses to make available through the lending program. A look at the 187 items in the lending library supports this view. There are

• Works by well-known copyright reform advocates such as Brand and Lawrence Lessig.
• Obsolete computer books. Example: Microsoft Windows 98 at a glance
• Older books likely to be orphan works: example- Alice James: her brothers~her journal, the posthumously published diary of Alice James.
• An in-copyright version of an out-of-copyright work: Brace Lineage, a genealogical work apparently based on an older version.
• Other genealogic works which might be considered to be data compilations. Example: Twelve generations in America
• Spanish language works published in Guatemala. Example: Regimenes agrarios
• A collection of stories by anonymous pregnant teens: You look too young to be a mom: teen moms speak out on love, learning, and success

In short, if you wanted to take legal action to stop the digital lending library, each of the books included in the lending library would pose some sort of problem for you.

It does not appear that the Internet Archive is attempting to rely on the statutory exceptions for libraries in US copyright law. These exceptions have rather technical requirements, and the lending library program does not appear to have been crafted to take advantage of these exceptions. Rather, it appears to be staking out fair use grounds. As James Grimmelmann writes:

The argument here would likely center on the Archive’s nonprofit purpose, the negligible harm to the market for some long-out-of-print books (quite possibly including some orphan works), and the nearby public policies of first sale and library exceptions. The natural counter-argument, however, is that distributing complete copies of books for readers to consume is so close to the core of copyright’s rights and goals that fair use simply cannot stretch that fair. These are non-transformative, substitutive, complete copies of expressive works—so while the Archive would have an argument, the fair use factors arguably tip 4-0 against it. Should it win, it would be a revolution in fair use caselaw. A good revolution, for some, but a revolution nonetheless.

Consider the case of Digital Systems by Ronald Tocci, published by Prentice Hall in 1977. The lending library offers only the first edition; a tenth edition was published in 2006. It would be hard for Prentice Hall to argue that offering a single copy of the 1977 version would reduce its economic value, while it would be easy to argue that sales of the 2006 edition will be enhanced. In addition to the probable difficulty in proving damages, it's likely that Prentice Hall might have difficulty proving that it has electronic publication rights for the 1977 edition, as author contracts of that era could not have anticipated today's internet distribution channels.

The Internet Archive's legal strategy would appear to be one of fair use creep, a sort of adverse possession by the public domain. If no one steps forward to tell the Internet Archive to stop lending these works, then the public gains a sort of right-of-way to use them. Even if a lawsuit occurs, it's quite possible that a jury would consider single-copy lending use of any of the 187 to be fair, even if the majority of copyright lawyers might disagree. If enough works become available in this way, then a political constituency for library lending of ebooks could develop and strengthen.


It looks to me as though the Archive is setting a trap, hoping that someone will take the bait and file a lawsuit despite problematic subject matter. The publicity exemplified by the Wall Street Journal article then looks like chum on the water to trick the legal sharks of publishing into striking on poisoned bait.

And here I was about to go swimming.

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