The Future of Digital Knowledge: Internet Archive’s Battle and the Value of the Public Domain

8 min readJun 26, 2024

English translation of an italian post that was originally published on Levysoft.it

A digital earthquake has shaken the world of online culture: Internet Archive, a vast non-profit digital library with the mission of preserving and making accessible digital books, videos, films, songs, images, software, and entire websites from around the world (Wayback Machine), has been forced to remove half a million books from its free collection. This dramatic event is the result of a legal battle that began a year ago when a group of publishers accused Internet Archive’s Open Library project of copyright infringement.

Open Library: An Innovative Initiative

For those unfamiliar, Open Library is an ambitious initiative that collaborates with physical libraries to digitize, by scanning, their paper book collections and offer them as e-books. Its strength lies in the “controlled digital lending” system, which allows only one user at a time to consult a digital work. The platform essentially functioned like a physical library, “lending” the copies of books in its possession and making them unavailable until their return. The key point here is that the books made available would be, therefore, effectively a loan of works physically owned by Internet Archive itself, in a manner no different from any other library, regardless of the fact that instead of physical format, the works were distributed in digital format.

Consequences of the Legal Battle

However, the judges interpreted this system as a way to bypass lucrative e-book licenses. Internet Archive argued that controlled digital lending does not harm the e-book market and that, on the contrary, it serves to promote access to knowledge and information (since those who read loaned books tend to recommend them to others, potentially triggering more sales), in line with the main purpose of copyright law.

Chris Freeland, director of Internet Archive services, stated: “Our position is simple; we just want to allow our users to borrow and read the books we own, like any other library”. The organization also highlighted that many of the removed works are out of print or written by deceased authors, whose work no longer generates significant revenue for publishers.

The Evolution of the Controversy

The situation has further complicated over the past year. Initially, the injunction only concerned 1,300 works from four major publishers (Hachette, HarperCollins, Penguin Random House, and Wiley), but the Association of American Publishers subsequently raised the stakes, involving other publishers and requesting the removal of many more titles.

Internet Archive has not given up and has taken the battle to the US Court of Appeals. Their argument is that digital books should be treated like physical ones: a loan is a loan, whether it’s of bits or paper. The goal is to demonstrate that all this falls under “fair use” as provided by copyright law, reiterating that libraries must be able to spread knowledge, regardless of the format. It is interesting to note that, conversely, the principle of “fair use” was recognized in the Google Books case.

Community Mobilization and Consequences

Meanwhile, the community has mobilized and over 25,000 supporters have signed an open letter to publishers, asking them to reconsider their position. The message is clear: removing these books not only hinders academic progress but also puts cultural preservation at risk. In fact, the consequences of this decision are vast and deep: students may lose access to crucial study materials, researchers are deprived of valuable sources, and even simple enthusiasts can no longer read rare or niche works, banned in certain countries or simply not available in their geographical area. For many , therefore, Internet Archive was not just a digital library, but a beacon of intellectual freedom.

However, this legal battle represents more than just a copyright issue: it is a struggle for the future of knowledge in the digital age. At a time when, thanks to digitization, information should be increasingly accessible, the removal of half a million books from a free platform marks a worrisome step backward for the democratization of knowledge.

Academic Studies Supporting the Value of the Public Domain

Supporting Internet Archive’s arguments, two major academic studies in recent years shed new light on the value of the public domain and the potentially negative effects of prolonged copyright. Both researches highlight how freely usable works can actually stimulate innovation and access to culture, rather than inhibit it, in addition to the significant economic and cultural value that public domain works offer, a point often underestimated in the intellectual property debate. The authors of both researches suggest that the current policy of continuous copyright extension might actually hinder, rather than promote, access to and use of creative works.

But let’s delve deeper into the details.

How Copyright Makes Works Disappear

The first study, from 2013, “How Copyright Keeps Works Disappeared” by Paul J. Heald, offers a rigorous empirical analysis that challenges traditional conceptions of copyright. Heald demonstrates, through a survey of over 2,000 books and songs, that public domain works are more readily accessible than those still under copyright.

Heald, with a meticulous and data-driven approach, highlights that copyright tends to suppress the reappearance of works. Books published before 1923, now in the public domain, represent a significant share of available works, while books still under copyright are much less present. This phenomenon is not limited to books but extends to music, although with different nuances.

One of Heald’s central arguments is the copyright paradox: the protection meant to incentivize the creation and distribution of works, in reality, ends up limiting public access once the works are out of active commercial circulation. Data collected from Amazon and other platforms reveal an inverse correlation between copyright status and the availability of works.

His analysis of songs available on DVDs of blockbuster films shows a similar trend. Older songs, especially those free of rights, are used more frequently in films than those still under copyright. This suggests that the cost and difficulty of obtaining rights for copyrighted songs discourage filmmakers from using them.

Heald extends his analysis to the eBook and used book markets. Despite the growth of eBooks, the digital market has not filled the void left by out-of-print books. Only a minority of bestsellers from 1923–1932 is available in eBook format, and most available eBooks do not represent out-of-print bestsellers.

The used book market, though more robust, cannot fully compensate for the lack of new editions. This leads to a disturbing conclusion: many literary works risk being forgotten simply because they are no longer commercially viable to reprint under current copyright laws.

Heald concludes that the current copyright policy, centered on the continuous extension of the protection term, is not justified by empirical data. Instead, his research suggests that copyright expiration stimulates new life for works, making them accessible and usable again.
This challenges the arguments of copyright lobbyists who claim that works need prolonged protection to be adequately exploited. In reality, as Heald shows, the public domain seems to offer a more fertile environment for the re-emergence and continued enjoyment of creative works.

Heald’s study goes further, examining the eBook and used book markets, revealing that even these channels cannot fill the void left by out-of-print but still copyrighted books. This research provides a solid empirical basis for reconsidering copyright laws, suggesting that copyright expiration could actually stimulate new life for creative works, making them accessible to the public again.

The Valuation of Unprotected Works

The second study, from 2015, “The Valuation of Unprotected Works: A Case Study of Public Domain Photographs on Wikipedia” by Paul Heald, Kristofer Erickson and Martin Kretschmer, focuses on the economic value of the public domain.

Heald, Erickson, and Kretschmer begin with an intriguing premise, inviting us to rethink the value and function of the public domain in the modern context: the public domain has significant economic value, but rarely quantified.

One of the authors’ central arguments is that works free of rights tend to be used more frequently than works under copyright. This phenomenon is clearly observable on Wikipedia, where most of the images used for biographical pages come from the public domain. The authors highlight that cost savings represent a significant advantage derived from the use of free-use images. In fact, the estimated value of these public domain photographs on Wikipedia is between 246 and 270 million dollars per year, thanks to savings on licensing costs from photo agencies like Corbis and Getty Images.

The authors criticize the current copyright policy, suggesting that the continuous extension of the protection term is not justified by empirical data. On the contrary, works entering the public domain tend to be more accessible and used. This challenges the arguments of copyright advocates who claim that works need prolonged protection to be adequately exploited.

Further Studies on the Value of the Public Domain

In the field of scientific research, numerous scholars have focused their attention on analyzing the benefits of the public domain compared to works protected by copyright. While the two studies previously discussed represent some of the most significant contributions in this field, there is a vast literature that further delves into this topic. For those who wish to explore the subject further, enriching the debate that the Internet Archive case has recently ignited, here is a list of other important academic works:

Flynn, J., Giblin, R., & Petitjean, F. (2019). What Happens When Books Enter the Public Domain? Testing Copyright’s Underuse Hypothesis across Australia, New Zealand, The United States and Canada. University of New South Wales Law Journal. https://doi.org/10.31228/osf.io/8bxve.
Heald, P. (2007). Property Rights and the Efficient Exploitation of Copyrighted Works: An Empirical Analysis of Public Domain and Copyrighted Fiction Best Sellers. Law & Economics. https://doi.org/10.2139/ssrn.955954.
Biasi, B., & Moser, P. (2021). Effects of Copyrights on Science: Evidence from the WWII Book Republication Program. American Economic Journal: Microeconomics. https://doi.org/10.1257/mic.20190113.
Heald, P. (2008). Bestselling Musical Compositions (1913–32) and Their Use in Cinema (1968–2007). Music eJournal — Forthcoming. https://doi.org/10.2139/ssrn.1115405.
Flynn, J., Giblin, R., & Petitjean, F. (2019). What Happens When Books Enter the Public Domain? Testing Copyright’s Underuse Hypothesis across Australia, New Zealand, The United States and Canada. University of New South Wales Law Journal. https://doi.org/10.31228/osf.io/8bxve.
Buccafusco, C., & Heald, P. (2012). Do Bad Things Happen When Works Enter the Public Domain?: Empirical Tests of Copyright Term Extension. Law & Psychology eJournal. https://doi.org/10.2139/SSRN.2130008.
Drummond, T. (2015). Understanding Copyright and Fair Use in the Music Classroom. Music Educators Journal, 102, 48–53. https://doi.org/10.1177/0027432115611233.