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The Scholarly Kitchen Looks at the Internet Archive Lawsuit

Controlled digital lending (CDL) is really at the heart of [the Internet Archive (IA)] suit, more so than the focus on the emergency nature of the IA program. In fact, what is striking is that the case hardly mentioned that this was a temporary program in the depths of a lock down that ceased within months of being started. Publishers were not simply seeking to end a short-term program, but are seeking to limit the ability of libraries to engage in new approaches to existing rights that libraries have as established in copyright law.

This is a situation where bad facts bring about bad case law. The Internet Archive was certainly trying to extend the understanding of existing Fair Use rights under copyright law with the extension of its National Emergency Library, but the practice of controlled digital lending had been in place and practiced by institutions for several years prior to 2020, when the IA pushed out its service to anyone, anywhere, at any time. It is instructive that the publishing community waited until 2020 to act against IA, when the facts were most aligned to provide them a concrete and expansive win. The publishers did not pursue the many libraries that have used much more limited applications of CDL to serve their constituents. …

In this case, as is in so many aspects, the law is woefully inadequate to address the modern digital ecosystem and how a significant portion of the public interact with content.

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