Internet Archive Faces Copyright Infringement Claims for Use of CDL

Internet Archive started as a website with the aim to preserve websites and information on the internet. Internet Archive expanded its goal to become an online digital library offering what has become known as Controlled Digital Lending (“CDL”).  However, such practice now has Internet Archive facing copyright infringement claims.

Internet Archive Uses CDL Technology

Internet Archive purchases one or more copies of a book and uses a process to scan the books creating digital versions to lend out to users. With CDL, Internet Archive allows users to create a free account and then checkout digital copies the books.

Traditional brick-and-mortar libraries have started partnering with several different organizations to provide their users with digital versions of books housed at the libraries. The main difference being that these companies often have a license with the publishers and the library requires an existing library card number.

Publishing Companies Claim Internet Archive’s CDL is Infringing

Four large publishing companies, Hachette, HarperCollins, Penguin Random House, and Wiley have brought a suit against Internet Archive for copyright infringement of copyrighted books with damages that could reach $19 million. Hachette Book Grp., Inc. v. Internet Archive, 2022 U.S. Dist. LEXIS 120780 (S.D.N.Y. 2022). The publishers have accused Internet Archive of collecting more than 33,000 of the publishers’ commercially available titles under copyright without authorization. The publishers claim that this exploits the works and that authors are not in support of the practice.

Internet Archive’s Defense

Internet Archive is putting forth a fair use defense, that it has purchased one or more copies of all the books it offers and that it acts like a traditional library, just over the internet. Internet Archive also pointed to other cases where traditional libraries and Google were sued for offering digital versions of books and found to have been engaged in fair use.

Author organizations and unions have submitted amicus briefs for both sides, showing a divide on how authors themselves view this issue.

Key Takeaways on Internet Archive’s Use of CDL

The case against Internet Archive for copyright infringement is important to watch because:

• The use of the Internet and digital media is ever growing;

• Companies and public libraries increasingly seek to offer digital options; and

• The case could be a large watershed for fair use and the digitization of print media.

For more information about copyright litigation, see our Software Protection and Copyright Services and Industry Focused Legal Solutions pages.