In Hachette v. Internet Archive, Hachette Book Group Inc. and other publishing companies sued the Internet Archive, alleging that the Archive infringed copyrights on their books by operating a controlled digital lending program.
“Controlled digital lending” (CDL) allows libraries to get books they own in physical copies to patrons in digital form. It involves libraries scanning books, then lending the scan on a limited basis—as they would the physical copy, one patron at a time. When the Archive loosened these limitations to its CDL program as part of its National Emergency Library during the pandemic lockdowns, the publishers sued the Archive in the Southern District of New York. The Archive argued that its CDL program constituted fair use of copyrighted works, but the district court ruled in favor of the publishers, holding that the CDL program did not qualify as fair use. The Archive appealed to the Second Circuit Court.
The Samuelson Clinic filed an amicus brief to the circuit court on behalf of the Center for Democracy & Technology, Library Freedom Project, and Public Knowledge. The brief did not focus on copyright, but instead highlighted how library CDL programs can protect reader privacy, which it argued is fundamental to the public’s meaningful access to information and is reflected in case law, state statutes, and long-standing library practices. In contrast, commercial e-books track readers’ actions in detail, decimating the public’s long standing ability to read and explore information privately and anonymously. The brief argued that reader privacy is thus an important reason for library CDL programs to be favored under the law.