The lawsuit hinges on the question of whether e-books are books, subject to the existing laws governing the sale of books, or whether the publishers can redefine e-books as temporary, rental-only media – a new class of unownable goods, like streaming-only films from Disney or subscription-only software from Microsoft. But libraries must have the option to buy and own their books – all their books, including e-books – and own them absolutely.
This threat to the ownership of books is what makes the ongoing publishers’ lawsuit against the Internet Archivepolitically dangerous and in an altogether different way from earlier challenges and amendments to copyright law. At a time of increasing book bannings and attacks on libraries, public schools and universities, it is not safe for democracy, or for our cultural posterity, to leave an “on/off” switch for library books in the hands of corporate publishers.
In the summer of 2020, Hachette, Penguin Random House, HarperCollins, and Wiley accused the Internet Archive of “mass-scale copyright infringement” because of the way the Internet Archive’s Open Library loans its e-books to patrons. The publishers’ objective had been to forbid the Open Library to loan any of their in-copyright books as e-books.
Last September more than a thousand writers signed an open letter in support of the Internet Archive and digital ownership rights for libraries.
In March, after nearly three years of litigation, US District Court Judge John G. Koeltl sided with the publishers against the Internet Archive. But there’s a significant catch, as we learned a few weeks ago when his final order was filed.
“[On 11 August], the Southern District of New York court issued its final order in Hachette v. Internet Archive, thus bringing the lower court proceedings to a close. We disagree with the court’s decision and intend to appeal. In the meantime, however, we will abide by the court’s injunction,” The Internet Archive said.
For now, the Open Library will have to stop loaning only those e-books for which the publishers are offering their own “competing” e-books for licence. In other words, the order relies solely on the argument that the Open Library is harming the publishers’ revenues from e-books, a distinction that seems to go to the heart of the dispute.
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