Internet Archive Loses Appeal
The Second Circuit Court of Appeals upheld the lower-court ruling against the Internet Archive (IA).
The suit was first brought in 2020 by HarperCollins, Penguin Random House, Hachette Book Group, and Wiley, alleging “willful mass copyright infringement” by IA’s “National Emergency Library,” which offered unlimited borrows of over a million ebooks. Judge John Koeltl of New York Federal Court issued a summary judgment against IA on March 24, 2023.
The ruling reads, in part:
This appeal presents the following question: is it “fair use” for a nonprofit organization to organization to scan copyright-protected print books in their entirety and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, 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.
The judges concluded that that “IA’s use of the Works is not transformative. IA creates digital copies of the Works and distributes those copies to its users in full, for free.” They acknowledged the harm to the publishers of those books:
Publishers obtained from authors the exclusive right to publish their Works in numerous formats, including print and eBooks, and it is this exclusive right that IA is alleged to have violated via its Free Digital Library. For that reason, the relevant harm — or lack thereof — is to Publishers’ markets for the Works in any format…. Not only is IA’s Free Digital Library likely to serve as a substitute for the originals, the undisputed evidence suggests it is intended to achieve that exact result…. IA’s Free Digital Library serves as a satisfactory substitute for the original Works. Were we to approve IA’s use of the Works, there would be little reason for consumers or libraries to pay Publishers for content they could access for free on IA’s website.
The judges wrap up by saying, “IA asks this Court to bless the large scale copying and distribution of copyrighted books without permission from or payment to the Publishers or authors. 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.”
The full decision is available to read here.
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