Internet Archive loses lawsuit brought by publishers

Publishers Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House filed the lawsuit against Internet Archive (IA) in 2020, claiming IA had illegally scanned and uploaded 127 of their books for readers to download for free, negatively impacting their sales and the authors' royalties. On 25 March 2023, U.S. District Court Judge John G. Koeltl ruled in favor of the publishing houses on strict copyright grounds, stating that IA was making "derivative" works when they created electronic copies of printed books. The Internet Archive said it will appeal the ruling.

Reuters reported the facts of Hachette v Internet Archive and provided a link to the ruling.     

The response from IA to the result of the lawsuit was to state that the fight continues. ”Today’s lower court decision in Hachette v. Internet Archive is a blow to all libraries and the communities we serve. This decision impacts libraries across the US who rely on controlled digital lending to connect their patrons with books online. It hurts authors by saying that unfair licensing models are the only way their books can be read online. And it holds back access to information in the digital age, harming all readers, everywhere.”

IA has these suggestions for those wanting to help it continue the fight:

Stand up for libraries 
Stand up for the digital rights of all libraries! Join the Battle for Libraries: 

Support the Internet Archive  
Support the Internet Archive to continue fighting for libraries in court!

Stay connected 
Sign up for the Empowering Libraries newsletter for ongoing updates about the lawsuit and our library.

Commentary and opinion from multiple sources

Publishers Weekly had a roundup of its extensive coverage of the lawsuit from its inception to the decision. 

The Scholarly Kitchen, which is a daily online publication of the Society for Scholarly Publishing (SSP), characterized the decision as Controlled Digital Lending (CPL) taking a blow. NISO Executive Director Todd A. Carpenter wrote: “Publishers were not simply seeking to end a short-term program, but are seeking to limit the ability of libraries to engage in new approaches to existing rights that libraries have as established in copyright law….. The implications of this ruling are potentially profound, and, given the strong lean in the publisher’s favor, they are potentially troubling for libraries and the rights of those who seek to engage with content in our evermore digital and digitized world if the decision stands through the forthcoming appeals.” For Carpenter, “This ruling inherently narrows fair use and relegates library use to either the aggressively controlled digital subscription ecosystem, a very narrowly constrained use case set, or the domain of the purely physical”.

Gizmodo called  the decision “A Blow for Libraries”.

Columbia Journalism Review commented “When is a library not a library? When it’s online, apparently”.

WIRED asked  why some authors are delighted with the decision that may well make ebooks less accessible. Kate Knibs wrote: “This fight, over the fairly niche issue of ebook copyrights, hits upon larger, ongoing conversations about paying artists, what it means to own digital works, and corporate price gouging”.

The Verge reported, “A federal judge has ruled against the Internet Archive in Hachette v. Internet Archive, a lawsuit brought against it by four book publishers, deciding that the website does not have the right to scan books and lend them out like a library.”

The Atlantic viewed the decision as pitting publishers against librarians. Dan Cohen wrote: “It will impoverish readers across the country seeking access to digital books, and over time diminish the library as a democratic institution that provides broad collections to everyone.”

Library Futures, in its post about the judgement, included a reference to the international Project ReShare and NISO’s work on CDL standards.

Mashable shared, “Prior to COVID, the Internet Archive lent e-books via a ‘controlled digital lending’ system, or CDL: Libraries offer loans of digitized book copies on a one-to-one basis—that means that they circulate the exact number of copies they own. When [its National Emergency Library] launched, Internet Archive removed all waitlists for books and lent out any amount of copies on a two-week basis.”

NPR noted The Internet Archive, which strives to provide ‘universal access to all knowledge,’ said its emergency online library was legal under the doctrine of fair use. But on Friday, U.S. District Court Judge John G. Koeltl of the Southern District of New York sided with the publishers, saying established law was on their side. …

Industry expert Nate Hoffelder stated, “I think where the Internet Archive went wrong was that they took their years of experience as a research library (archiving content with little commercial value) and tried to apply the same practices as a public library (sharing commercially available works). The problem with this is that applying a research library’s preservation practices to commercially available content destroys that content’s value. This is why the [Internet Archive] got sued, and why internet lefties such as myself are opposing the [Internet Archive].”

Techdirt’s Mike Masnick expressed his opinion that publishers are getting one step closer to killing libraries. “The fact that the ruling came out on the Friday after the Monday oral arguments suggests pretty strongly that Judge Koeltl had his mind made up pretty quickly and was ready to kill a library with little delay”. He eviscerates the argument that this case was not similar to the Supreme Court ruling in Sony v Universal that affirmed VCRs were legal and time shifting TV shows were clearly fair use.

International ramifications

Although this was a U.S. court ruling, it has widespread implications for libraries located outside the court’s jurisdiction. If, as some contend, the ruling is not simply about U.S. copyright but an attack on CDL in general, then libraries everywhere stand to lose the ability to lend ebooks. The possibility of being priced out of the market by publishers raising prices on ebooks also exists. The activities of the UK’s #ebooksos group and the attention librarians have brought to the pricing of ebooks, particularly for academic libraries are a harbinger of what could happen if the ruling against the IA is upheld.

Of course, this ruling by Judge Koeltl is not the end of the dispute. It is certainly a temporary setback for IA but the planned appeal is the next step in what is likely to be a lengthy process.