Inside the (potentially) impactful lawsuit that’s all. about. books.

Oral arguments were held yesterday in Hatchett v. Internet Archive, a potentially watershed case for fair use and copyright law in the US.

⚖️ The basics: The case was filed in 2020 by four prominent book publishers, including HarperCollins and Penguin Random House, against Internet Archive, a non-profit digital library providing free access to digitized books, videos, images, games and websites (via the Wayback Machine).

In this case, the publishers take issue with the Internet Archive’s Open Library, a collection of about 1.4 million digitized books lent out via a lend-like-print practice called “controlled digital lending,” or CDL.

• CDL operates under the same rules as physical lending: only one person can borrow the digital book at a time, the scans are DRM-protected, and if the digital copy is loaned out, the physical counterpart cannot circulate.

And that right there is the crux of the issue. According to the plaintiffs, the Open Library and CDL are “willful digital piracy on an industrial scale.” E-books, they argue, are not the same as books, but instead a separate product that must be acquired specifically from whoever licenses that product (usually the publishers or a third party vendor like Overdrive).

In fact, the publishers say the IA isn’t a library at all, but a commercial enterprise masquerading as a library for financial gain.

🖐️ On the other hand: The IA disagrees, claiming that CDL constitutes fair use under copyright law and there’s no difference between a physical book and its digital counterpart – both are taken out by many people, one at a time.

👀 Looking ahead… Both sides now await a summary judgment from the court. If one cannot be reached, the case will head to trial.