Internet Archive has lost a major legal battle—in a decision that could have significant implications for the future of internet history. Today, the U.S. Court of Appeals for the Second Circuit ruled against the long-standing digital archive, maintain previous judgment IN Hachette sues Internet Archive discovered that one of the Internet Archive’s book digitization projects violated copyright laws.
Notably, the appeals court’s ruling rejected Internet Archive’s argument that its lending activities were protected by the fair use doctrine, which allows copyright infringement in certain circumstances, call it “not convincing.”
In March 2020, the San Francisco-based nonprofit Internet Archive launched a program called the National Emergency Library, or NEL. Pandemic library closures have left millions of books out of reach for students, researchers, and readers, and the Internet Archive says it is responding to calls from regular people and other librarians to help people at home get the books they need.
NEL is an offshoot of an ongoing digital lending project called Open Library, in which the Internet Archive scans physical copies of library books and allows people to check out digital copies as if they were regular reading material instead of e-books. Open Library lends books to one person at a time—but NEL has done away with this ratio rule, instead allowing a large number of people to borrow each scanned book at the same time.
What is NEL? is the subject of backlash Shortly after its launch, some authors argued that this amounted to copyright infringement. In response, the Internet Archive lifted the emergency measure within two months and reinstated the lending limits. But the damage was 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 establish that the Internet Archive had created “derivative works,” arguing that there was “nothing transformative” about copying and lending. After the initial ruling in Hachette sues Internet ArchiveThe parties have negotiated terms—details of which have not been disclosed—though the agency has filed an appeal.
James Grimmelmann, a professor of digital and internet law at Cornell University, said the ruling was “not really surprising” given how the court has recently interpreted the concept of fair use.
The Internet Archive won a crushing victory on appeal. While the 2nd Circuit Court of Appeals sided with the district court’s original ruling, it clarified that it did not consider the Internet Archive a commercial entity, instead emphasizing that it was clearly a nonprofit operation. Grimmelmann called the decision the right one: “I’m glad to see that the 2nd Circuit has corrected that error.” (He signed an amicus brief in the appeal arguing that the classification of the use as commercial was wrong.)
“Today’s appellate ruling upholds the rights of authors and publishers to license and receive compensation for their books and other creative works and reminds us starkly that infringement is both costly and contrary to the public interest,” Association of American Publishers president and CEO Maria A. Pallante said in a statement. “If there was any doubt, the Court made clear that under fair use law, there is nothing transformative about converting entire works into new formats without permission or about misappropriating the value of derivative works that are a key part of an author’s copyright package.”
