The Implication of Internet Archive’s Defeat on the Future of Digital Copyright Law
What is the Internet Archive?
The Internet Archive is a non-profit organisation dedicated to maintaining the history of the Internet. In practice, this means taking snapshots of websites to preserve their contents for when they are updated or disbanded. It is becoming increasingly useful as older websites and companies shut their doors, removing access to anything they would have previously stored. For the average consumer, this could mean losing access to important information. On top of this, it has become a useful tool in combating misinformation online. The preservation of news and posts reveals their original contents before any amendments or censorship takes place.
The Internet Archive and copyright law
Internet Archive’s e-book division scans almost 4,000 books a day into its online collection. Under its current system, some books are held under a digital lending license. This follows the model of a library which grants access to copies to a limited number of users and for a specified amount of time.
Internet Archive also uses a system called “controlled digital lending” which has gone unchallenged for many years. Under this system, Internet Archive holds one physical copy for every digital copy it lends. This enables them to cite the “first sale doctrine”, which allows someone to lend or sell copyrighted work as long as they own the physical copy.
However, this raises doubts over Internet Archive’s compliance with copyright laws as it has only been clarified that the first sale doctrine applies to physical items. Further copyright challenges may arise from the publication of the other websites’ content. Until recently, the Internet Archive had managed to avoid legal action as many organisations did not see it as worthwhile to sue a non-profit organisation.
In March 2020, and in response to the pandemic environment, four publishing houses joined together to sue the Internet Archive for mass copyright infringement. The claim was a response to an initiative to help, inter alia, teachers and students access content more easily whilst libraries were shut. Under a scheme titled the “National Emergency Library”, the Internet Archive loosened its restrictions on the controlled digital lending system. Despite the noble intentions, some of the publishers who had allowed the Internet Archive to use their work believed it to be unlawful.
In March 2023, Judge John G. Koeltl of the Southern District of New York ruled that the Internet Archive was in breach of US law. His decision rested on the idea that e-books are not protected by the first-sale doctrine as the digitised copies were not authorised and could therefore not be lent, despite the ownership of a physical copy.
What does this mean for the future of digital licensing?
For copyright law, this case will help shape the future of how digital content is treated. Currently, the e-book market is growing at a steady rate. In 2022-23, it amounted to 36% of Amazon’s total book sales. With this ruling favouring publishers, the concept of a digital library for books not yet in the public domain appears unsustainable. Instead, e-book lending services will need to use paid subscription-based services to give borrowers licenses to their digital books.
It is worth noting that European law, following a Court of Justice ruling on the 3rd of July 2012, allows the resale of any digital good downloaded from the internet as long as it has been sold for an unlimited time. This did not relate to lending, however, it shows the support for the first sale doctrine in Europe, even for digital goods.
Going forwards, the Internet Archive is appealing the decision and continuing its limited digital lending services. Their “National Emergency Library” scheme lasted three months and ended in June 2020.
By Samuel Axford