Internet Archive loses appeal against publishers in e-library lawsuit

MANHATTAN (CN) ­— A federal appeals panel on Wednesday affirmed a lower court’s finding that a fair use defense doesn't protect Internet Archive’s free digital book-lending platforms against book publishers’ copyright claims.

“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 … all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no,” a Second Circuit Court of Appeals panel wrote in an opinion made public Wednesday.

The three-judge panel’s opinion was penned by U.S. Circuit Judge Beth Robinson, a Joe Biden appointee who appeared to signal her stance in support of the publisher plaintiff-appellees during oral arguments last June.

“Internet Archives asks this court to bless the large scale copying and distribution of copyrighted books without permission from or payment to the Publishers or authors,” Robinson wrote in the opinion. “Such a holding would allow for widescale copying that deprives creators of compensation and diminishes the incentive to produce new works. This may be what Internet Archive and its amici prefer, but it is not an approach that the Copyright Act permits.”

Robinson was joined on the panel by U.S. Circuit Judge Maria Kahn, a fellow Biden appointee, and the Donald Trump-appointed U.S. Circuit Judge Steven Menashi.

Chris Freeland, Director of Library Services at the Internet Archive, said in a statement Wednesday afternoon that the group was “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,” he added.

The Internet Archive started in 1996 as a nonprofit with the goal of providing “universal access to all knowledge” by archiving public web pages to preserve digital history. It later expanded its collections to include other pieces of media including movies, software, audio files and books. Today, the Internet Archive is home to more than 835 billion web pages, 44 million print materials and 10.6 million videos.

Hachette and three other major book publishers — Penguin Random House, HarperCollins and Wiley & Sons — sued the Internet Archive in 2020 after it program dubbed the National Emergency Library in response to library shutdowns during the Covid-19 outbreak.

The National Emergency Library expanded the site’s long-running Open Library program, which lets people digitally “check out” scanned copies of physical books.

The publishers deemed both online platforms’ unlicensed distribution of electronic copies of 127 of their titles to be “willful digital piracy on an industrial scale.”

A federal judge for the Southern District of New York ruled in March 2023 that the Free Digital Library had infringed on publishers’ copyrights, rejected the website’s fair use defense and granted summary judgment against the Internet Archive.

On appeal, Internet Archive argued the lower court erred by adopting an “unworkably expansive definition of ‘commercial’” in determining against its fair use defense.

Represented by attorneys from Morrison Foerster, the Internet Archive also claimed its e-book lending does not harm the publishers’ markets.

“Controlled digital lending is not a substitute for publishers’ e-book licenses because it offers a fundamentally different service,” the site wrote in an appeals brief. “It enables libraries to efficiently lend books they own, while e-book licenses allow libraries to provide readers temporary access through commercial aggregators to whatever selection of books publishers choose to make available, whether the library owns a copy or not.”

Numerous advocates for the Internet Archive filed amicus briefs in support of its appeal, similarly arguing that the Free Digital Library’s controlled lending as the kind of noncommercial, nonprofit use that is specially favored for exception from copyright under the law.

Represented by Davis Wright Tremaine attorney Elizabeth McNamara, the publishers countered that siding with the Internet Archive on appeal would be a “radical change” to existing copyright law that would “destabilize the digital economy” for all media, not just books.

McNamara also rejected the notion that the Internet Archive was performing a harmless public service. She argued that there are legitimate fears of writers and publishers becoming discouraged from producing and distributing their works, should the court rule against her clients.

On Wednesday Maria A. Pallante, president and CEO of Association of American Publishers, applauded the panel's ruling.

“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," she wrote in a statement. "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.”

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