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Internet Archive Court Loss Leaves Higher Ed in Gray Area | Inside Higher Ed

Legal experts are uncertain how much this latest court decision will affect colleges and universities, though they expect institutions to tread carefully. The programs at Carnegie Mellon, Michigan State, the UC system and other institutions—including the University of Florida and the California Institute of Technology—all appear to be operating, according to their respective websites. The institutions either could not be reached or did not respond to requests for comment.

“A lot of people in the academic space and the business space would rather operate as cautiously as possible,” said Stephen Wolfson, assistant general counsel and copyright adviser for University of Pennsylvania Libraries.

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While the appeals process upheld most of the district court’s ruling, there was one deviation.

... [T]he appeals court found that the Internet Archive’s digital library wasn’t a commercial activity.

“To hold otherwise would greatly restrain the ability of nonprofits to seek donations while making fair use of copyrighted works,” the judges wrote.

Jonathan Band, a copyright lawyer who represents the Association of Research Libraries, said if the district court’s entire ruling had been upheld, the decision could’ve had potentially large ramifications for higher education libraries, many of which are nonprofits. (Note: This article has been updated to correct the library association Band represents.)

“If you start saying what they did was commercial, at that point anything engaged by any nonprofit would be found to be commercial,” Band said.

The American Library Association and the Association of College and Research Libraries both filed briefs stating the Internet Archive’s activity was “clearly not commercial,” though they did not take a further stance on either side of the lawsuit.

Penn’s Wolfson agreed with Band.

“If it had come out otherwise, it could look like practically everything we do is for commercial use,” Wolfson said.

Wolfson and Band did differ slightly on the impact of this latest ruling over all.

Band said the latest ruling—whether it was in favor of Internet Archive or not—wouldn’t have affected higher education libraries, given they work with research papers and scholarly monographs and not the popular titles that were targets of the Internet Archive.

“In this decision, we’re talking about trade books, the mass market books, like best sellers by Stephen King that are in print and available right now for commercial licensing,” Band said. To the contrary, many of the books seen in research libraries are typically not available, either digitally or physically, to the mass market. “These are just older, out-of-print books. They’re not available digitally through some easily accessible platform.”

Jennifer Urban, co-director of the Berkeley Center for Law and Technology, said university libraries’ lending programs differ from Internet Archive in that reader privacy is at the forefront.

In an amicus brief she wrote on behalf of the University of California Berkeley School of Law, along with the Center for Democracy and Technology and the Library Freedom Project, Urban pointed out that libraries minimize data collection and data transfer (transferring only a student’s library card number and book barcode, for example), as well as maintain data security.

“Library-led controlled digital lending incorporates longstanding library values and practices that protect reader privacy and intellectual freedom,” the briefing said. Urban added that commercial aggregators like Overdrive, along with the Internet Archive, “differ sharply from libraries in their incentives and practices regarding reader privacy.”

Wolfson expects higher education to feel minimal, if any, impact because of the small amount of digital lending programs just starting at institutions. But, as students increasingly demand access to online or digital materials, the ruling could stifle further program creation.

“This decision could be used down the road to challenge that sort of activity,” Wolfson said. “It creates an environment where previously you felt OK with lending some things through controlled lending programs—but not everything—but now there’s at least a couple decisions that show it’s problematic for this activity.”

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