The Internet Archive has lost its appeal of a copyright infringement lawsuit brought by several major book publishers over its digital book lending program.
In its ruling, a panel of judges on the U.S. Court of Appeals for the Second Circuit ruled that the IA’s controlled digital lending program, Open Library, violated copyright law. The nonprofit library had tried to argue that its project of scanning print books and making the digital versions available to borrow was protected by the Copyright Act’s “fair use” rules; but the judges agreed with last year’s district court ruling that Open Library failed to meet the standards necessary to qualify for those protections.
In a statement, the Internet Archive 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.”
Maria Pallante, president and CEO of the Association of American Publishers (AAP), said the ruling “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.”
The book publishers — Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House — sued the Internet Archive in June 2020 after the Internet Archive launched its “National Emergency Library.” By that point, the Archive had been scanning and lending book online on a one-to-one, owned-to-loan basis for years. The National Emergency Library, however, removed those restrictions to make texts more widely available as schools and libraries closed during the pandemic.
While the National Emergency Library prompted the suit, the district and appeals court rulings pertain to the Archive’s controlled digital lending program as a whole. The appeals court said that Open Library didn’t meet the standards necessary for fair use protections, saying there was “nothing transformative about the IA’s use” of these books, or its controlled digital lending program, because “its digital copies serve the same purpose as the originals.”
The appeals court also stated that the Archive didn’t qualify for some of the copyright infringement protections that traditional libraries enjoy. “IA does not perform the traditional functions of a library; it prepares derivatives of Publishers’ Works and delivers those derivatives to its users in full,” it said. “That Section 108 [of the Copyright Act] allows libraries to make a small number of copies for preservation and replacement purposes does not mean that IA can prepare and distribute derivative works en masse and assert that it is simply performing the traditional functions of a library.”
In its conclusion, the judges said the IA had asked the court to “bless the large scale copying and distribution of copyrighted books without permission from or payment to the Publishers or authors.” They continued, “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 IA and its amici prefer, but it is not an approach that the Copyright Act permits.”
When the district court judgment was announced last year, the AAP issued a statement outlining the terms of the settlement, which remain unchanged and will go into effect once there is a final ruling that can’t be appealed. When it came to monetary damages, the AAP said the sum was “confidential,” but its “attorney’s fees and costs in the action since 2020 have been substantially compensated.”
It’s not clear if any of the authors whose work was sued over (or their estates) will receive any portion of the damages. When reached for comment on the matter, an AAP representative said, “The terms of the monetary payment are confidential.”
The Archive is also facing a similar copyright infringement suit brought by several major labels and music rights holders. They sued last year over the Archive’s Great 78 Project, which aims to digitize and preserve 78rpm shellac discs.