The Electronic Frontier Foundation (EFF), with co-counsel Morrison Foerster LLP, is defending  the Internet Archive against a lawsuit that threatens its Controlled Digital Lending (CDL) program.

The Internet Archive is a nonprofit digital library, preserving and providing access to cultural artifacts of all kinds in electronic form. CDL allows people to check out digital copies of books for two weeks or less, and only permits patrons to check out as many copies as the Internet Archive and its partner libraries physically own. That means that if the Internet Archive and its partner libraries have only one copy of a book, then only one patron can borrow it at a time, just like other library lending. Through CDL, the Internet Archive is helping to foster research and learning by helping patrons access books and by keeping books in circulation when their publishers have lost interest in them.

Four publishers sued the Archive, alleging that CDL violates their copyrights. In their complaint, Hachette, HarperCollins, Wiley, and Penguin Random House claim CDL has cost their companies millions of dollars and is a threat to their businesses.

They are wrong. Libraries have paid publishers billions of dollars for the books in their print collections, and are investing enormous resources in digitization in order to preserve those texts. CDL helps ensure that the public can make full use of the books that libraries have bought and paid for. This activity is fundamentally the same as traditional library lending, and poses no new harm to authors or the publishing industry. Libraries have never been required to get permissions or pay extra fees to lend books.  And as a practical matter, the data shows that CDL has not and will not harm the publishers' bottom line.

The Internet Archive and the hundreds of libraries and archives that support CDL are simply striving to serve their patrons effectively and efficiently, lending books one at a time, just as they have done for centuries. Copyright law does not prevent that lawful fair use. Indeed, it supports it.

On July 7, 2022, we filed a motion for summary judgment, asking the court to put an end to this dangerous lawsuit. On March 24, 2023, the court ruled against the Internet Archive, finding that the Internet Archive's CDL program was not a fair use. But the case is far from over. The Internet Archive is appealing the decision and filed its opening brief in the case on December 15, 2023. EFF will continue to stand with it to defend this essential public service.