Internet Archive appeals book publishers’ copyright suit

Non-profit appeals summary judgment granted to major publishers including Hachette and Penguin | Digital library maintains its fair use argument in appeal filed with the Second Circuit.

Internet Archive has appealed a district court’s decision that favoured four of the biggest US publishers in their copyright complaint made against the digital library.

In March 2023, Hachette, HarperCollins, John Wiley & Sons and Penguin Random House prevailed in a California court after a judge granted their motion for summary judgment.

The group had sued the San-Francisco-based non-profit in June 2020, claiming that its controlled digital lending (CDL) of eBooks infringed their copyrights.

This followed Senator Thom Tillis' assertion that he was “deeply concerned” that Internet Archive was “operating outside the boundaries” of copyright law, after the online library launched its ‘national emergency library’ in March 2020.

The archive retaliated, arguing that the emergency library was  launched to meet the “unprecedented global and immediate need for access to reading and research materials” during the COVID-19 pandemic.

Fed Circ appeal

The Electronic Frontier Foundation (EFF) and co-counsel Morrison Foerster filed its appellate brief on Friday, December 15, on the archive’s behalf, at the US Court of Appeals for the Second Circuit.

Internet Archive argues that the publishing companies “must not be allowed to criminalise fair-use library lending”, maintaining that its CDL programme is “a lawful fair use that preserves traditional library lending in the digital world”.

Brewster Kahle, founder and digital librarian of Internet Archive, said during a press conference on Friday, December 15: "Why should everyone care about this lawsuit? Because it is about preserving the integrity of our published record, where the great books of our past meet the demands of our digital future.

“This is not merely an individual struggle; it is a collective endeavour for society and democracy struggling with our digital transition. We need secure access to the historical record. We need every tool that libraries have given us over the centuries to combat the manipulation and misinformation that has now become even easier.

“This appeal underscores the role of libraries in supporting universal access to information—a right that transcends geographic location, socioeconomic status, disability, or any other barriers,” Kahle added.

Digital lending

Internet Archive has scanned millions of print books and made the resulting eBooks publicly available on its website. While these are not available for mass downloading, they are loaned out in limited numbers at a time, with physical copies of the books in storage.

Through CDL, Internet Archive and other libraries make and lend out digital scans of print books in their collections, subject to certain technical controls. The Internet Archive argues that each book loaned via CDL has already been bought and paid for, so authors and publishers have already been fully compensated for those books.

The non-profit points to what it says is concrete evidence, showing that the archive’s digital lending—which is limited to its members—does not and will not harm the market for books.

In its March 2023 decision, the district court "gave short shrift" to that evidence—"one of many flaws in the ruling", said Corynne McSherry, legal director of the EFF, during the press conference on Friday.

The district court’s “rejection of IA’s fair use defence was wrongly premised on the supposition that controlled digital lending is equivalent to indiscriminately posting scanned books online,” the archive argues in its brief.

It added: “That error caused it to misapply each of the fair use factors, give improper weight to speculative claims of harm, and discount the tremendous public benefits controlled digital lending offers. Given those benefits and the lack of harm to rights holders, allowing IA’s use would promote the creation and sharing of knowledge—core copyright purposes—far better than forbidding it.”

‘Nothing transformative’

But in his judgment handed down in March, Judge John Koeltl dismissed the archive’s fair use defence.

There was “nothing transformative” about the company’s copying and unauthorised lending of these books, he said, rejecting Internet Archive’s argument that it was performing a “transformative function” of making the delivery of library books more efficient.

Internet Archive claimed that its library was non-commercial. But Koeltl found that it “exploits the works-in-suit without paying the customary price” and used its website to “attract new members, solicit donations, and bolster its standing”, to gain an advantage or benefit from the works.

Judge Koetl also rejected the one-to-one owned-to-loaned system as having no legal basis. Fair use did not allow “the mass reproduction and distribution of complete copyrighted works in a way that does not transform those works and that creates directly competing substitutes for the originals”, he said.

The outcome of the case could have far-reaching consequences for libraries’ online lending, suggests Internet Archive’s founder.

Kahle suggested that: “If this decision is left to stand, it will take away a library’s ability to lend books from its permanent collections to digital learners.”

The EFF's McSherry added: “The publishers are not seeking protection from harm to their existing rights. They are seeking a new right: the right to take advantage of technological developments to control how libraries may lend the books they own.”

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