Four major US publishers, including three from the largest publishing houses, have filed a lawsuit against the Internet Archive (IA) for extensive copyright infringement related to its emergency library program (ELP). IA is renowned for promoting Controlled Digital Lending (CDL) through its open library, where it lends electronic copies of physical books it holds, adhering to a loaned-to-owned ratio. During the Covid-19 pandemic, IA suspended this ratio under ELP, lending out more copies than it physically owned. While ELP raises concerns about copyright infringement, the legality of CDL itself remains uncertain. Supporters argue that the fair use doctrine provides a primary defense for CDL. This analysis examines the current legal landscape surrounding IA and CDL under US law, suggesting that gaps in legislation mean fair use may not sufficiently protect CDL, and that legislative changes are needed to secure its future.
