Remember the Internet Archive’s “Open Library” and “National Emergency Library” programs, and four publishers’ decision to file suit over them that I reported back in June? The wheels of the legal system have continued grinding slowly onward.
On Publishers Weekly, Andrew Albanese reports that plaintiffs and defendant agreed to a year-long discovery process, in which both sides gather as much information relevant to the case as possible. He also reports that the judge in the case accepted the schedule and set some dates for filings to be in and hearings to begin. Assuming all goes well, the hearings could begin in mid-November, 2021.
Albanese notes that the breadth of scope of the issues covered in the discovery process—including “All aspects of the operations of the Internet Archive, Open Library, and National Emergency Library, including without limitation the development and application of ‘Controlled Digital Lending.’”—suggest this could be “a potentially sensitive, and complex litigation.” It looks as though, having seized upon the bone of contention, the plaintiff publishers intend to pick it just as clean as they can.
Nate Hoffelder of The Digital Reader seems to think that this lawsuit is a case of the publishers throwing The Internet Archive and its founder Brewster Kahle right into the very briar patch they had always wanted to land in. While Hoffelder doubts the National Emergency Library’s uncontrolled lending would be found legal, he believes it could lead to an explicit legalization of the “Controlled Digital Lending” fig leaf that the regular Open Library operated under.
If you want to argue that CDL can’t possibly be legal, I would remind you that Google Books wasn’t legal – until, suddenly, it was. (I would also remind you that the ReDigi lost its case and still got a ruling that legalized the resale of music and other digital content.)
Hoffelder had believed the publishers were trying to avoid litigating that issue to avoid potentially setting a precedent unfavorable to them, but supposed the blatancy of the National Emergency Library forced their hand.
Personally, I’m skeptical of Kahle’s chances on that score. The CDL is basically a large-scale legalization of space-shifting, and while space-shifting has been deemed legal in certain cases, in the most similar cases to the Open Library, it’s fallen flat on its face.
For example, in 2000 Michael Robertson’s MP3.com service launched my.MP3.com, a way to allow people to prove they owned a particular CD by scanning it with their CD-ROM drive, then stream the music from it from MP3.com’s servers. The record labels sued and won. The gist of the decision was that, while you could space-shift your own content and use it yourself, you had to do the space-shifting yourself, and you had to be using it yourself. You can’t just space-shift something and then let someone else use it.
Google Books was always pitched as a fair use of copyrighted works, and exactly the same use it had been making of copyrighted public internet content for years—copying everything in order to index it for searching, rather than to make it available to anybody else. And the courts indeed saw it that way.
But CDL rests on an entirely novel theory of fair use that there’s little real support for as yet. And as the judge in the my.MP3.com case said:
“Some companies operating in the area of the Internet may have a misconception that, because their technology is somewhat novel, they are somehow immune from the ordinary applications of laws of the United States, including copyright law,” Judge Rakoff said. “They need to understand that the law’s domain knows no such limits.”
I really don’t see this ending well for Brewster Kahle, any more than it did for Michael Robertson. But it will certainly be interesting finding out if I’m wrong. Too bad it’ll be at least a year before the arguments begin—and that’s assuming that the parties involved don’t come to an agreement to settle out of court beforehand.