Why a ruling against the Internet Archive threatens the future of America’s libraries

Some libraries have turned to another solution: controlled digital lending, or CDL, a process by which a library scans the physical books it already has in its collection, makes secure digital copies, and lends those out on a one-to-one “owned to loaned” ratio.  The Internet Archive was an early pioneer of this technique.

When the digital copy is loaned, the physical copy is sequestered from borrowing; when the physical copy is checked out, the digital copy becomes unavailable. The benefits to libraries are obvious; delicate books can be circulated without fear of damage, volumes can be moved off-site for facilities work without interrupting patron access, and older and endangered works become searchable and can get a second chance at life. Library patrons, who fund their local library’s purchases with their tax dollars, also benefit from the ability to freely access the books.

Publishers are, unfortunately, not a fan of this model, and in 2020 four of them sued the Internet Archive over its CDL program. The suit ultimately focused on the Internet Archive’s lending of 127 books that were already commercially available through licensed aggregators. The publisher plaintiffs accused the Internet Archive of mass copyright infringement, while the Internet Archive argued that its digitization and lending program was a fair use. The trial court sided with the publishers, and on September 4, the Court of Appeals for the Second Circuit reaffirmed that decision with some alterations to the underlying reasoning. 

This decision harms libraries. It locks them into an e-book ecosystem designed to extract as much money as possible while harvesting (and reselling) reader data en masse. It leaves local communities’ reading habits at the mercy of curatorial decisions made by four dominant publishing companies thousands of miles away. It steers Americans away from one of the few remaining bastions of privacy protection and funnels them into a surveillance ecosystem that, like Big Tech, becomes more dangerous with each passing data breach. And by increasing the price for access to knowledge, it puts up even more barriers between underserved communities and the American dream.