The Internet Archive has lost its appeal in the copyright case against Hachette and three other publishers. The Second Circuit Court of Appeals affirmed the previous decision, from March 2023, that the Internet Archive’s Open Library program qualifies as copyright infringement. Hachette, HarperCollins, Penguin Random House, and Wiley initially filed a lawsuit against the popular nonprofit organization in 2020.
“This appeal presents the following question: Is it ‘fair use” for a nonprofit organization to scan copyright-protected print books in their entirety, and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors?” Wednesday’s decision reads. “Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no.”
The Internet Archive is a longstanding organization that preserves and provides access to digitized content, beginning in 1996 to save the “ephemeral” content of the Internet. In its mission to “provide Universal Access to All Knowledge,” the org expanded to digital versions of other published works, with “special attention” paid to books. “Not everyone has access to a public or academic library with a good collection, so to provide universal access we need to provide digital versions of books,” IA states on its website. “One of the Internet Archive’s missions is to serve people who have difficulty interacting with physical books, so most of our digitized books are available to people with print disabilities.”
The court rejected most of the Internet Archive’s defense, including the notion that the archive provides a public service. “While IA claims that prohibiting its practices would harm consumers and researchers, allowing its practices would―and does―harm authors,” the decision reads. “With each digital book IA disseminates, it deprives Publishers and authors of the revenues due to them as compensation for their unique creations. Though IA and its amici may lament the consolidation of editorial power and criticize Publishers for being motivated by profits, behind Publishers stand authors who are entitled to compensation for the reproduction of their works and whose ‘private motivation’ ultimately serve[s] the cause of promoting broad public availability of literature, music, and the other arts.”
The appeal decision did differ from the initial ruling that IA was engaged in commercial activity because it accepts donations, noting that such precedent “would greatly restrain the ability of nonprofits to seek donations while making fair use of copyrighted works.” However, the appeal was rejected on every other front. “The parties in this case represent potentially serious interests. On the one hand, eBook licensing fees may impose a burden on libraries and reduce access to creative work. On the other hand, authors have a right to be compensated in connection with the copying and distribution of their original creations,” the court concludes, citing the Copyright Act. “IA asks this Court to bless the large scale copying and distribution of copyrighted books without permission from or payment to the Publishers or authors. Such a holding would allow for widescale copying that deprives creators of compensation and diminishes the incentive to produce new works.”
The group of publishers was organized in its lawsuit by the Association of American Publishers. “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,” said AAP president and CEO Maria Pallante, in a statement (via Publisher’s Weekly). “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.”
After the initial decision in 2023, Internet Archive founder Brewster Kahle said in a statement, “Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society—owning, preserving, and lending books. This ruling is a blow for libraries, readers, and authors and we plan to appeal it.” On Wednesday, IA encouraged users to “open letter to publishers, asking them to restore access to the 500,000 books removed from our library.” In a statement, the organization said, “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.”