Back in July, the Brussels Business Court issued a sweeping ex parte site-blocking order targeting several “shadow libraries” including Anna’s Archive, Libgen, and Z-Library.
Unusually, the order also included the Internet Archive’s Open Library, a project operated by the well-known U.S. non-profit organization Internet Archive.
The order was granted based on a request from publishers and authors who claimed, among other things, that the operators of the targeted sites were difficult to identify. This also applied to the Internet Archive, which was not heard by the court before the order was issued.
The Brussels Court went along with these allegations and determined the targeted sites, including Open Library, to be structurally infringing copyrights. This meant that blocking could go ahead but while that was the case for most domains, Open Library was an exception.
As TorrentFreak previously reported, Belgium has a two-step process for site blocking, where a special government body, the Department for Combating Infringements of Copyright and Related Rights Committed Online and the Illegal Exploitation of Online Games of Chance, determines the final implementation.
In this case, the government department slammed on the brakes, realizing the U.S. non-profit organization could be easily contacted since it’s not a typical pirate site. Before making any further decisions, it urged the Internet Archive to consult the publishers to see if an agreement could be reached.
As a result, the blocking order was paused with regard to the openlibrary.org domain, while blockades of Anna’s Archive, LibGen, and Z-Library went into effect.
No Agreement Reached
Over the past several weeks, Internet Archive attempted to reach an agreement with the publishers, but the effort was unsuccessful. The details of these discussions are not public.
It is clear, however, that the Internet Archive believes that its use of copyrighted books for the Open Library qualifies as fair use. The organization is known to purchase physical copies, which it then digitizes to lend out to patrons, one copy at a time.
This self-digitizing project was previously contested in a U.S. federal court, where the publishers ultimately came out as the winner. They argued that the Internet Archive project competed with their own licensing business for book lending.
The detailed arguments at the center of the Belgian case are not public, but after hearing both sides, the Department for Combating Infringements of Copyright concluded that Internet Archive must take action.
No Agreement, Blocking is Necessary
In a follow-up decision published last week, the government department explicitly states that it can’t rule on U.S. fair use or the Belgian equivalent, but concludes that self-blocking measures are warranted.
The Internet Archive hosts the contested books and has the ability to render them inaccessible. If it refuses to do so, it may be considered a copyright infringer under local law.
“The Department finds that, without the involvement of Internet Archive, no works or excerpts of works belonging to the applicants would be made available online. As the website owner and host of “Open Library”, Internet Archive has full control over the content published on its website via its own servers.
“The provisional measures intended by the judge to put an end to the infringements on ‘Open Library’ can therefore be imposed on Internet Archive, which may be considered an ‘infringer’ within the meaning of Article XVII.34/1 of the CEL,” the decision adds.
Blocking Requirement with a €500,000 Non-Compliance Penalty
The final decision requires the rightsholders to supply the Internet Archive with a list of all books that should be blocked in Belgium. The non-profit then has 20 calendar days to implement the necessary measures.
In addition to making the books unavailable, Internet Archive must also prevent these works from being made available for digital lending in the future.
The department notes that its decision aims to be proportional, targeting only the infringing activity. This allows the rest of the Open Library to remain available, including metadata and reviews linked to the disputed books.
The order will remain in place until July 16 next year, and includes a one-off penalty of €500,000 in the event the Internet Archive fails to comply with its requirements.
Ultimately, the Belgian authorities chose a compromise, as no agreement could be reached voluntarily. The question remains whether this case should be handled by an anti-piracy framework, instead of a regular court proceeding that can rule on the European equivalent of fair use and related copyright exceptions.
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Update: After publication, the Internet Archive shared the following statement with us.
“We appreciate the Belgian authorities’ balanced approach in allowing continued access to Open Library. The collection includes public domain works, metadata, and materials supporting accessibility for readers with print disabilities. We remain committed to constructive dialogue on how to ensure fair, lawful, and inclusive access to knowledge, which is a core mission shared by libraries worldwide.”
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A copy of the final decision by the Department for Combating Infringements of Copyright and Related Rights Committed Online and the Illegal Exploitation of Online Games of Chance is available here (pdf).
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