‘Forced to remove 500,000 books from public access’: Internet Archive loses copyright suit with major publishing houses
Internet Archive has lost a major legal battle in the 2nd Circuit US Court of Appeals, take a look at what that entails for readers
Internet Archive has lost a major legal battle in the Second Circuit US Court of Appeals. The court ruled against the supremely beneficial digital archive, finding that one of the Archive's digitisation projects violated copyright law. As a result, more than 500,000 books will be made unavailable for digital lending. Internet Archive acts as a free digital library with stores of discontinued websites and old music. Their most unique offering is literary — books scanned using a unique software they call Scribe, used to archive almost every physical book you have had your eyes on.
What is the case about?
In March 2020, the San Francisco-based nonprofit registered library launched a program called the National Emergency Library, or NEL. The program was in response to the closing of libraries due to the pandemic, an unfortunate hitch in the system that left students and researchers unable to access the books they needed for class. Before the NEL came into existence, the Archive allowed one user to check out one book for a certain period of time — functioning like a digital library. The problem arose when the NEL removed this ratio rule, instead letting a number of people borrow the same book at once. Post-launch, the NEL became the subject of immense backlash, with authors arguing the program was equal to piracy, amongst claims that the controlled digital lending (CDL) of complete copies was not protected by the doctrine of fair use.
In response, the Archive reinstated the lending caps but a little too late. In June 2020, major publishing houses including Hachette, HarperCollins, Penguin Random House and Wiley filed the lawsuit. The case primarily concerns the fair use of CDL of complete copies of certain books and does not concern the display of short passages, limited page views, search results, books out of copyright or out of print, or books without an ebook version currently for sale. The first time the district court ruled in favour of the publishers was in March 2023.
Judge John G. Koeltl found that the Internet Archive had created “derivative works”, arguing that there was “nothing transformative” about the Archive's copying and lending policies. In August 2023, the parties reached a negotiated judgement, including a permanent injunction that barred the Internet Archive from lending complete copies through CDL of some of the plaintiffs' books. The Archive appealed this decision which is what was upheld by the appellate court on September 4, 2024. While the Second Circuit sided with the district court's ruling, it did clarify that the court did not view the Internet Archive as commercial, emphasising that it was clearly a nonprofit operation.
Association of American Publishers president and CEO Maria A. Pallante said in a statement, “Today’s appellate decision upholds the rights of authors and publishers to license and be compensated for their books and other creative works and reminds us in no uncertain terms that infringement is both costly and antithetical to the public interest. If there was any doubt, the Court makes clear that under fair use jurisprudence there is nothing transformative about converting entire works into new formats without permission or appropriating the value of derivative works that are a key part of the author’s copyright bundle."
What did the defendant have to say?
Chris Freeland, the Internet Archive's director of library services, expressed his understandable disappointment saying, “We are disappointed in today’s opinion about the Internet Archive’s digital lending of books that are available electronically elsewhere. We are reviewing the court’s opinion and will continue to defend the rights of libraries to own, lend, and preserve books.” Additionally, Dave Hansen, from the Author’s Alliance, a nonprofit that advocates for expanded digital access to books, also came out against the ruling. “Authors are researchers. Authors are readers and IA’s digital library helps those authors create new works and supports their interests in seeing their works be read. This ruling may benefit the bottom line of the largest publishers and most prominent authors, but for most, it will end up harming more than it will help.”
In the past few years, copyright laws have been targeting major AI companies that offer AI tools for creators. Many of the defendants in these cases argue that the fair use doctrine shields their usage of copyrighted data in AI training. The Archive fought for the same doctrine, but judges refuted fair use claims. The Internet Archive’s importance in digital preservation is keenly felt by a community of people eager to learn and connect — it would be an understatement to say that shutting this down would be disastrous for the public.