Internet Archive We just lost a major legal battle. The decision could have a major impact on the future of the Internet. Today, the U.S. Court of Appeals for the Second Circuit ruled against a long-running digital archive, Hachette vs. the Internet Archive One of the Internet Archive’s book digitization projects has been found to be in violation of copyright law.
Notably, the appeals court’s decision rejected the Internet Archive’s argument that its lending practices were protected by fair use doctrine, which permits copyright infringement under certain circumstances. Call it “It’s not convincing.”
The San Francisco-based nonprofit Internet Archive launched a program called the National Emergency Library (NEL) in March 2020. Library closures due to the pandemic have left students, researchers, and readers without access to millions of books, and the Internet Archive says it is responding to requests from the public and other librarians to help people at home access the books they need.
NEL is an offshoot of the ongoing digital lending project “Open Library,” in which the Internet Archive scanned physical copies of library books and allowed people to borrow the digital copies as if they were regular reading material, not e-books. Whereas Open Library allowed books to be checked out one person at a time, NEL did away with this ratio rule, allowing scanned books to be checked out by many people at once.
NEL came under fire from the get-go, with some authors arguing it amounted to copyright infringement. In response, the Internet Archive dropped the emergency measures within two months and reinstated the lending limits. But the damage was already done. In June 2020, major publishers including Hachette, HarperCollins, Penguin Random House, and Wiley filed a lawsuit.
In March 2023, the district court ruled in favor of the publishers. Judge John G. Koeltl Found The Internet Archive argued that it had created a “derivative work” and that there was “nothing transformative” about its copying and lending. Hachette vs. the Internet ArchiveThe parties have negotiated terms, details of which have not been released, but the archive is still appealing the decision.
James Grimmelmann, a professor of digital and internet law at Cornell University, said the ruling was “not that surprising” given how courts have interpreted fair use recently.
The Internet Archive won a narrow Pyrrhic victory on appeal: The Second Circuit upheld the district court’s initial ruling, but clarified that it did not consider the Internet Archive a commercial entity, emphasizing that it is clearly a nonprofit operation. Grimmelmann thinks this was the right decision: “I’m pleased that the Second Circuit has corrected its error.” (He signed an amicus brief on appeal arguing that it was a mistake to classify the use as commercial.)
“Today’s appellate decision upholds the rights of authors and publishers to license and remunerate their books and other creative works and serves as a stark reminder that copyright infringement is costly and contrary to the public interest,” Maria A. Pallante, president and CEO of the Association of American Publishers, said in a statement. “If there was any doubt, the Court makes clear that under the fair use doctrine, there is nothing transformative about converting an entire work into a new format without permission or misappropriating the value of derivative works that are a key part of an author’s copyright bundle.”
