An update from Kaitie Eke, one of the firm’s summer associates:

A copyright infringement lawsuit filed by four major publishing companies against the Internet Archive has prompted early termination of the site’s National Emergency Library, a project that made books available electronically during the COVID-19 pandemic. Although the project’s conclusion may render some of the publishers’ complaints moot, the suit also takes aim at the ongoing operation of the Open Library and larger Controlled Digital Lending (“CDL”) practices.

The Internet Archive is a self-described “non-profit library of millions of free books, movies, software, music, websites, and more.” As part of its CDL practices and large-scale digitization efforts, the organization takes photos of book pages, which are assembled into the digital book files it makes available to patrons free of charge. Unlike traditional ebooks, which are editions of books specially prepared for digital consumption, the files offered by the Internet Archive are scanned copies of physical books.

The Internet Archive believes its practices do not violate copyright law, relying on a theory of fair use. According to the site, it utilizes controls designed to mimic traditional library book lending, such as limiting the lending of digital versions of a given book to one reader at a time and limiting the lending period to two weeks unless checked out again.

On March 24, 2020, however, spurred by pandemic-related library closures and citing an effort “to serve the nation’s displaced learners,” the site announced that it had launched the National Emergency Library to suspend waitlists for books in its library through the later or June 30 or the end of the U.S. national emergency. The publishers’ lawsuit, filed in the United States District Court for the Southern District of New York on June 1, 2020, led the Internet Archive to end the National Emergency Library two weeks early, on June 16, 2020, and to return to its traditional CDL practices.

The National Emergency Library is now closed. Nevertheless, the legality of the Internet Archive’s scanning and distribution of books under copyright law remains an open and debated question.