SF-Based Internet Archive Is Fighting a Ruling That Could Change the Future of Digital Libraries

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or 26 years, a San Francisco-based digital library has stood in stark opposition to today’s commercial information ecosystem, hallmarked by paywalled periodicals, pricey books and advertisement-driven media.

Inside the Internet Archive’s massive warehouse, with towers of books new and old, it begins to sink in just how ambitious the nonprofit organization’s mission is: to preserve millions of texts and lend them freely online.

But the library’s philosophy is now being tried in court, as a ruling in a major lawsuit against the Internet Archive not only threatens to remove many of the free books from the Internet Archive’s website, but also could set the tone for digital libraries across the country.

“The idea was to try to fulfill the dream of the internet, of a universal library, and of universal access to all knowledge. A digital Library of Alexandria,” Brewster Kahle, founder and digital librarian for the Internet Archive, told KQED, referencing one of the world’s earliest and most storied libraries. “The San Francisco Public Library, the Burlingame Public Library and many libraries around the Bay Area donate books when they don’t need them anymore to the Internet Archive rather than, say, landfill.”

E-book lending is used across libraries and publishing houses, and often libraries will license those digital books from publishers. Through its Open Library, the Internet Archive maintains that it uses a model known as “controlled digital lending,” where a library owns a book, scans it digitally and loans the digital copy to one user at a time.

But in March 2020, when physical libraries were closed due to the pandemic and students were learning from home, the Internet Archive temporarily removed waitlists so anyone could access the books online, calling the initiative the National Emergency Library.

The Archive stopped the program and returned to its regular lending practices in June 2020, the same month that Hachette Book Group and other major publishers hit the Internet Archive with a multimillion-dollar lawsuit alleging copyright infringement.

This month, a federal judge in New York sided with the publishers, which include Penguin Random House, Wiley and HarperCollins, ruling that the Internet Archive violated copyright infringement laws through both the Open Library and the National Emergency Library.

In its lawsuit, Hachette Group argued that the Internet Archive “badly misleads the public and boldly misappropriates the goodwill that libraries enjoy and have legitimately earned.”

The publishers specifically complained about 127 books not under public domain (PDF) that are stored and offered freely on the Archive, by authors such as Sylvia Plath, Jon Krakauer, Toni Morrison, Malcolm Gladwell, C.S. Lewis and J.D. Salinger.

Publishers say Open Library flouts licensing fees libraries are supposed to pay them. But because libraries already paid licensing fees for the print books that the Internet Archive scans as part of the Open Library project, the nonprofit asserts that their one-to-one lending system constitutes fair use.

“IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book,” the Southern District of New York Judge John Koeltl stated in his ruling (PDF). “But no case or legal principle supports that notion. Every authority points the other direction.”

The fight is not over, though. The Archive, with support from its fandom of technologists, librarians, researchers, authors and digital rights activists, plans to appeal the ruling.

“The publishers demanded that we destroy millions of digitized books and stop lending, and they sued us for tens of millions of dollars. That was the publishers’ response when libraries closed, was to sue libraries,” said Kahle. “I don’t think it was very good behavior. In fact, it’s horrendous.”

Built in the Bay

The Archive is rooted in the Bay Area, spiritually with its high-tech-meets-open-access ethos, and physically, in the form of a Greek-columned, former Christian Science church-turned media museum in San Francisco’s Richmond District.

Inside its warehouse in the city of Richmond, just across the bay, rows of shipping containers hold meticulously organized boxes of books donated from places like the California State Library, the University of Florida, UC Riverside, the San Francisco Public Library and many other institutions the Archive helps to digitize books for.

The collection also includes an entire section of books that are banned, as well as books that legislators across the U.S. are actively attempting to ban. Nationwide, attempts to ban books nearly doubled from 2021 to 2022, reaching the highest point ever recorded at 1,269 demands to censor library books and resources in 2022, according to an analysis by the American Library Association, which began tracking the data nearly 20 years ago.

On any given day, staff with the Archive can be found tucked away at its San Francisco-based library scanning physical books, many of which are donated by local public libraries and university libraries, as well as individuals.

Amsterdam-based novelist Bette Adriaanse has used the Internet Archive for her work and was a fan from afar until she visited the Archive’s Richmond District location on a recent sunny Friday afternoon, when it hosts lunches open to the community.

“I was looking for this very obscure book on art and I couldn’t find it anywhere, not in libraries or bookstores. And then I found it on the Archive and I read it online and borrowed it,” said Adriaanse. “Since then I’ve been borrowing books from them that I can’t find in the library. And if I want to buy a book to support a book, I buy it.”

She was among about two dozen people who stopped by the Archive recently for its Friday lunches, during which Kahle is often around providing tours. On this particular Friday, the tour group was made up of fans visiting from out of the country, filmmakers, academics, archival vigilantes who scan the internet for websites to save, and video game designers in town for a conference.

In black socks with no shoes, Kahle dazzled the group with stories of the early internet days in the Archive’s common space. Then he laced up for a tour to the main attraction, a stained-glass chapel bordered with 3-foot-tall figures of people who are part of the Archive’s history and present.

At the pulpit there’s a tower of computer screens scrolling through bygone pages of the earliest days of the internet. The Internet Archive also runs the Wayback Machine, a digital archive of more than 800 billion webpages and counting, ranging from early ’90s blogs to news websites and Donald Trump’s tweets.

Behind the rows of pews, a giant server studded with lights that flash every time something is uploaded to the Archive twinkles like a technologic starry sky.

Local musician and filmmaker Rohit Rao regularly works out of the space, which offers free public Wi-Fi.

“I was drawn to it for nostalgia at first. But more recently, I’ve been uploading my films to the Archive. I had a bunch of these hard drives with films on there and I wanted to store them online,” said Rao, hunched over a keyboard in the Archive’s living room. “Lately, they’ve been giving me space to work. I might track my entire record here if they’re cool with it.”

The future of digital libraries

Whichever way the Archive’s appeal in the publishers’ lawsuit ultimately goes, some librarians and authors say it could set the stage for what book lending looks like in an increasingly digital era.

Some books could altogether disappear, advocates of the Archive say.

Laura Gibbs, who taught folklore and mythology online for the University of Oklahoma for more than 20 years, frequently used the Archive with her students. In more recent years, she has been dedicated to uploading and preserving some of the rare texts she works with, which are often hard to access elsewhere.

“This completely changed my research, and I do all my reading via the Internet Archive now,” said Gibbs, who was on the tour. “It just feels like the most important thing I’ve ever done. This is the future of education.”

Controlled digital lending “enables many authors to reach more readers than they could otherwise, and authors like our members who write to be read would not be served if fewer readers could access their books,” the Authors Alliance wrote in response to the recent ruling. The Alliance is a broad coalition of librarians, writers, academics and copyright attorneys who advocate for wider public access to books and knowledge.

The Internet Archive case also arrives as more libraries are digitizing their books to meet new customer demands and technological shifts.

“The argument that the Internet Archive isn’t a library is wrong. If this argument is accepted, the results would jeopardize the future development of digital libraries nationwide. The Internet Archive is the most significant specialized library to emerge in decades,” a group of eight librarians from MIT, UC Berkeley and other prominent institutions recently wrote in an op-ed for Inside Higher Education.

The Internet Archive says that it is, in fact, a modern-day library, pointing out that it has received government dollars earmarked for libraries, including from the federal E-Rate program, which provides funds and discounts on internet connection for schools and libraries.

Authors like Adriaanse understand the tough reality of making it financially as a writer, and that publishers need to make money to stay afloat.

But she was pleasantly surprised to find her own books on the Archive, as well as other free digital lending services at her local Dutch library system during the pandemic for people who didn’t have a library card.

“I got a lot more readers, so that tells you there are a lot of people out there who want to read but don’t have a library card or money to buy books,” Adriaanse said. “It is inspiring. It makes me think we can have universal access to knowledge.”