We are disappointed in today’s opinion about the Internet Archive’s digital lending of books that are available electronically elsewhere. We are reviewing the court’s opinion and will continue to defend the rights of libraries to own, lend, and preserve books.
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Sign the open letter to publishers, asking them to restore access to the 500,000 books removed from our library: https://change.org/LetReadersRead
You can read the opinion here.
Editorial note: updated 9/5/24 to include link to appellate opinion.
Definitely dispiriting news. I wonder: does this cover just the 500,000 books? Could Archive.org keep an ongoing public list of publishers who have had their content removed from Archive.org ? (I see this listing here, but don’t know if that page is being updated. https://help.archive.org/help/why-are-so-many-books-listed-as-borrow-unavailable-at-the-internet-archive/
In some cases, publishers have blocked books that were out-of-print but owned by previous entities swallowed up by larger publishers (Penguin Random House). Frankly, if Penguin Random House wants to control access to books published by entities it swallowed, shouldn’t it also assume the obligation to ensure that digital and/or print copies are still available to consumers? The court decision transcript cites Sandra Cisneros as an example of an author who is mad at archive.org’s inclusion of her books in the controlled digital library, but frankly she is a living author whose books are still in print and ebooks are mostly available. That is not what most archive.org users care about. We care about books published in the 1940s and 1950s and 1960s and 1970s, but which are out-of-print and the author is deceased.
There should certainly be reasonable accommodations for publishers who want to opt out, but why should Penguin Random House block books long out of print that they no longer have a genuine commercial interest in?
The true cost will be borne by public libraries and taxpayers who have to maintain a service for transporting interlibrary loans from one location to another when rapid digitization is easily available.
quite agree
i think it just the 50,000 books i dont see any other publisher jumping o the lawsuit hopefully somehow the publisher will given the books back to archive with some ground rules of course.
500,000 books
Cisneros is quoted in the decision as stating:
“When I went on the Internet Archive’s website and saw that scans of
my books were being distributed to anybody who wanted them for
free―without my permission or any payment―I was appalled. I
found the experience so viscerally upsetting that I could not stay on
the website for long.”
I have to ask what her reaction would be to entering a physical public library, since the situation – copies of her books being made available without her permission or payment – is essentially the same. Both a library and IA acquired those books through the same means – IA indeed purchases some of its books and libraries acquire some of their books through donations at no cost – and, as noted in the decision, under first sale doctrine no permission from the copyright owner is required for sale of individual copies.
While I understand where Cisneros is coming from, I think she misunderstands the situation.
She should be a little less greedy.
After reading the blog post about the lower court decision in March of last year, I was motivated to finally write out an argument I had been long running over and over again in my head and send it to the IA as an op-ed of sorts in favor of CDL. Since we’re back in the same situation and the subject of out of print publications came up, I figured it would be worth posting here:
“The aviation museum where I work holds a collection of 142 vintage aviation magazines from 1938 to 1946 and thanks to a grant and the help of the Internet Archive, they have been digitized and made available using controlled digital lending. We are a small museum and after acquiring these magazines, it became clear that we did not have the extensive amount of time and money to research all of the necessary copyright claims. Furthermore, many of these magazines have articles submitted by different authors and while determining the copyright status of the magazine overall is one thing, the status of the works therein is another. “Contributions to periodicals” is an entirely separate category from the magazines themselves. This is a reasonable protection. For example, it would not be fair to the author if a poem by a private individual read into the record of Congress would then lose its copyright protection. However, the flipside is that it makes copyright research drastically more complicated and labor intensive than it already is.”
“Of course, it could be argued, one could always wait for the copyright to expire. However, this would take decades and many of these magazines are brittle. They were printed on cheap paper that was not intended to last like that used in books. The fact that they have survived this long in a single collection is rare.”
“This is why controlled digital lending was such a godsend. Without it, there is a real risk that these magazines could be lost. It allowed us to preserve them and ensure they could continue to be read by future researchers and historians. (Additionally, having a digital copy not only acts as a backup, but also removes the need for access to the originals as even careful handling of them results in relatively rapid deterioration of the paper.)”
“The stories they contain are an important part of aviation history. They capture the way aviation was viewed in popular culture and the general “airmindedness” attitude of society during the 1930s and 40s. Many of the pilots that defended the United States during World War II grew up reading the stories in earlier incarnations of these magazines and were inspired to pursue a career in aviation because of them. What’s more, while historical facts and figures, such as the date of a dogfight or the top speed of an airplane, are relatively easy come by due to the large number of aviation encyclopedias and aircraft compendiums in existence, finding sources for what was in the public consciousness is far more difficult. So these magazines are especially valuable.”
“So, my question to the publishers is: What would they have me do? I cannot afford to wait, but without controlled digital lending I also cannot afford to move forward. Sure, one could argue that the magazines could be scanned, but not made publicly available. However, even discounting the inherent contradiction in purpose that would create, most financial grants to museums for digitization are awarded for projects that make materials available to the public. So it would most likely prove very difficult to secure such a grant if I could not demonstrate public access.”
Well, this sucks.
Why isn’t there a link to the appellate decision in the posting? The Wired story uses this one:
https://storage.courtlistener.com/recap/gov.uscourts.ca2.60988/gov.uscourts.ca2.60988.306.1.pdf
Did the ruling expressly prohibit further scanning of the publishers’ books for the purposes of linking references on Wikipedia? (which, as I’ve understood, they permit?)
Robert Nagle “an ongoing public list of publishers who have had their content removed from Archive.org”
Well they were not technically removed. They are still there, such as, for example, for the above purpose.
New York courts have now screwed us over.
I am interested in finding out how I can help. Out of print books are being burned by authoritarian governments as part of their Fahrenheit 451 strategy of rewriting history.
if currently shitty deviantart outlasts Archive.org, then the Internet can completely failed us
I’ve been waiting for that ship to sink for years. For some reason dA just keeps plugging along.
So what about older books where the author and publisher are no longer around? How does a library serve patrons with books that they can no longer obtain physically and would also not be able to license for a derivative version. I want a judges answer on that. Seems to be there needs to an active registry again of copyright holders.
My understanding is that in general for works published after 1925 in the United States, the copyright lasts for the life of the author plus 70 years. The publishing companies (and possibly families) still get rights to their money for a while.
I’m also disappointed. I can’t accept the short-sightedness behind this decision, in the face of what the Archive stands for.
it really sucks you’re actually siding with the courts here and actually doing what they ask. disappointing.
Hopefully you guys will not be shut down
I checked all of the books I have checked out — seven. Only one of them was affected, and I am pretty sure the author is alive.
Terrible news. The Internet Archive needs to look at their loudest public voice from their most outspoken employee Jason Scott. Jason harasses tech companies on social media and no wonder it’s very hard to get support for the Internet Archive. At the organization I work at Jason harassed the social media assistant on Twitter and we are very big supporters. We are not donating this year, to the Internet Archive. Jason thinks, he’s doing the Internet Archive a service, he’s not. Get this guy some talking point and media training. Bridges are burnt to a crisp.
I live in India, and frankly speaking, there’s a plethora of books that, even though I’m capable of purchasing, I can’t find anywhere. They’re not even available in ebook format on the publisher’s page. So, I guess even if I want to read something, I’ll be excluded from it with no alternative, thanks to those who managed to pull off this atrocious act
The decision appears to only apply to books where there is an authorized ebook currently on the market (at least to readers, and probably to libraries). See page 16 and page 20:
The district court specifically limited its judgment to print books
that, like the 127 Works at issue in the suit, are also “available for
electronic licensing.”
However, the court’s reasoning looked at the impact of the Archive’s library lending on the market for (those particular) books in both print and in ebooks.
The big strategic challenge in the decision is that the same detailed reasoning about the factors of fair use would support shutting down every library in America, because they affect the market for selling printed books or ebooks. However, ordinary libraries escape that fate because they never make a “COPY” of their books (except as authorized by statute to preserve a copy in case of fire or other loss). The idiocy of the Copyright Act and how the courts interpret it, is that format-shifting by making a single copy makes institutions like the Archive subject to all this blah-blah-blah 50-page fair-use analysis, though ordinary libraries aren’t.
The court decision never clearly states the fact that the Archive does not offer people the ability to download and keep copies of the lent books. Its wording appears to support the inflammatory idea that that’s what is happening, even though it isn’t.
What’s next? Second hand books at Goodwill or something?
What does the judgement mean? Is IA shutting down? Is it removing more books? Will it remain as after the lower court’s judgement? Somebody plz clarify.
I’m not giving up faith, i will stand and fight with you guys to the very end.
this website is simply too important to be lost, you have so much good for the world and i refuse to let such a valuable asset to humanity to die. I will spread this message and help you all as best as i possibly can!
same here i signed two penition one from change and another from fight for the future. i hope the supreme court will rule in your favor (knock on wood)
Agreed
TF writes: “While IA’s actions are potentially beneficial in some ways, they ultimately harm the market for the publishers’ books, the court concludes.”
There’s the big problem… the culture of America thinks that the “market” is more important than culture, compassion, learning, and humanity.
The Copyright Act should be repealed, and everyone (particularly artists and educators!) provided for otherwise.
It’s disappointing but hopefully limited decision that I hope doesn’t harm the Archive. I know many see the corporate encroachment and don’t like which interests are being prioritized by the court.
I started college during the pandemic. The internet Archive has always been up there with JSTOR as my two go tos for research. I don’t want to lose hope. Y’all have done a tremendous amount of good and I hope it can continue. I’ve never been to the pacific side of the USA but if I ever am I am beelineing to say thank you for everything you’ve done. It’s weird to me that some people are spooked by the digital lending. This is a library for the internet. It is housed physically in a library.
I think based on what has happened so far, Internet Archive should reach an agreement to restore the 500,000 books removed and scan new/unavailable books, by paying the publishers/authors a small amount for each book based on the number of times a book is borrowed/used.
This money should be collected as a usage fee from Internet Archive users ($1 to $5 donation for a year’s usage from every user). Based on the number of times a book is borrowed, the payment to the authors/publishers should be decided.
Since Internet Archive is such a valuable library it should continue to function with a small fee from every user.
I think you should keep appealing to protect preservation, claim the holder has no interest in preservation and effectively wants to do a digital “burning of the Library of Alexandria”
It’s a horrible decision, but not an unexpected one. Courts have been putting ever-increasing limits on fair-use ever since the notion reared it’s head in the realm of copyright. While an expanded definition of fair-use would help things, the root problem is the increasing insanity of the copyright law itself – with ever expanding terms and areas of control. Under the GATT amendments, Congress created copyrights ex nihilo for works that were previously public domain in the USA. Part of the problem here is that archive.org seems to have no means of checking the validity of copyright claims made by the publishers in terms of the massive number of items here, and therefore must rely upon a fair-use argument instead of confining the archive to things that are in the public domain. While the publisher lawyers no doubt chose their 127 works in the complaint carefully, many thousands of others they claim could be free due to failure to renew, publication without notice (or defective notice), etc. – for items first published in the US.
It’s a huge job and IMSLP has a dedicated copyright review team whose entire job is to sift through all the uploads (way less than what comes into archive.org) and determine what is free where and what is protected. Honestly I think archive.org would be better off it they moved to a place with a simpler copyright law that that of the US, which is by far the most complicated one on the planet. Most countries in the world use the “PMA” rubric to determine the term of copyright. PMA refers to the Latin phrase Post mortem actoris (after the death of the author). This normally refers to the LAST SURVIVING author of any given work and the most common terms are 70 years after the death of the last survivor (EU for example) or 50 years (China and many countries in the ‘global south’). The simpler laws can be programmed into an upload tool to a great degree. The one in the USA has so many wormholes and trap-doors it would be well-night impossible to handle in anything resembling an automated way.
Archive.org faces a similar lawsuit brought by recording companies over its laudable efforts to preserve older recordings. The big problem – again- is that one-size does not fit all and – again – the US has just about the very worst system imaginable enshrined. Technically, pre-1972 recordings are not subject to Federal copyright directly. That did not keep congress from creating a federal “performance right” for such recordings all the way back to wax cylinders with the so-called “Music Modernization Act”. The big problem we see with many of the recordings is that the first level (copyright of the work recorded) of the two-levels present in any sound-recording copyright seems to have been ignored. Many of the old 78s and LPs archived contain recordings of works that are still under copyright in the USA. It’s one thing to have an older recording of Mozart or Beethoven – whose works are generally free. It’s quite another to have items by folks like many of the popular composers of the 78 era like Richard Rodgers. While you can’t have a work by Rodgers alone (1902-1979) – who outlived his two most famous lyricists Oscar Hammerstein II (died 1960) and Lorenz Hart (died 1943) up on a server in the Philippines (whose term is life-plus 50), they could be added there in mere 5 years (January 1, 2030). Here in USA, the term for most of the classic shows and sings is 95 years from the date of first publication. Only the earliest shows like “Connecticut Yankee” are free here – assuming publication took place in 1927 or 1928.
anyone ever consider moving Archive.org into Countries like Indonesia?
A good portion of their business is done overseas, including a massive scanning operation in Cebu.
thanks for good blog
Time to boycott these publishers, especially Hachette. That one in particular is dead to me.
This decision is foolish, because it only serves to reduce the profits of the publishers who have chosen to sue. The basis of their claim is that allowing the Internet Archive to loan books exactly like a library loans books cuts into their profits.
The truth is this is exactly the opposite of the truth.
People that borrow ebooks are precisely the same people who will not buy them unless they already like the books. They are interested in reading a book before adding it to their physical book collection. If they aren’t given the opportunity to borrow the book from a library–physical or digital–then they simply won’t read that book at all. The few who would actually spend money on the books are the exception.
So the lending of books by libraries not only advertises the products of these publishers, leading to purchases they would otherwise not make, but it encourages reading generally.
Well, my small act of support is that I will never more will give any money to anyone of these greedy, myopic and stupid publishers. And I know of many people who does the same. I really hope that Internet Archive will not let down, because the site does more good to culture and knowledge that all these publishers and judges who probably never had interest in finding a difficult book
Is there a next step here? Will you all be petitioning the Supreme Court for review? IANAL, but I don’t see this Court as being particularly sympathetic to your view. Its decision last May in Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith et al. would seem to indicate both that it will take a narrow view of fair use cases and will also, likely, favor rights holders.
Still 110% behind you all. Internet Archive is my favorite site.
It seems that either the Cisneros books were available as community texts (I’ve seen stuff available in the wrong way here on the Archive. It’s gotten better) or she doesn’t understand, and doesn’t want to understand, how controlled digital lending works. She has no more reason to be upset about this library than about any other. Maybe she wants to gripe that people can read their stuff outside the US, without access to a public library, is that it? If so, I can’t sympathize.
Earth doesn’t have enough grim ballaches?
Keep fighting, nerds (affectionate).
The courts should have gave you more god damn time so I could download sim_jack-and-jill_1949-01_11_3.pdf
thanks for this issue