The Second Circuit Court of Appeals ruled Wednesday against Internet Archive — a nonprofit digital library, well-known for its Wayback Machine — in a copyright infringement lawsuit stemming from its distribution of scanned books without publisher approval.
In 2020, four major publishing houses — Hachette, Penguin Random House, Wiley, and HarperCollins — filed a lawsuit against Internet Archive alleging that its Open Library project represents “willful digital piracy on an industrial scale.”
For many years, the Open Library allowed users to “check out” book scans through a controlled digital lending process whereby each available loan corresponded to a physical book held in a library.
Libraries, on the other hand, must purchase limited-time e-book licenses in order to make materials available to their patrons on platforms such as OverDrive.
During the COVID-19 pandemic, Internet Archive launched the National Emergency Library, which dramatically expanded its Open Library initiative so that up to 10,000 users could check out the same book simultaneously.
Controlled digital lending protocols were reinstated after just a few months, however, after the four publishers filed suit.
According to the Second Circuit’s ruling, Internet Archive hosts 3.2 million digitized copyrighted works on its website and sees about 70,000 “borrows” per day.
Internet Archive has argued that this practice does not represent copyright infringement as it falls under the Copyright Act’s fair use allowances.
The U.S. Copyright Office explains that “limited portions of a work including quotes” may be used “for purposes such as commentary, criticism, news reporting, and scholarly reports.” Parodies are also generally understood as an acceptable form of fair use.
Internet Archive responded to this lawsuit by arguing that its digital library ought to be included among these other “transformative” uses because it utilizes “technology ‘to make lending more convenient and efficient.'” They go on to suggest that each of their digitized books “serves a new and different function from the original work and is not a substitute for it.”
The publishers, however, contend that these editions do nothing except “repackage” the original works. It is this interpretation that was upheld by the Second Circuit on the grounds that the purpose of Internet Archive’s digitized books is to “mak[e] authors’ works available to read.”
“Not only is [Internet Archive]’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,” the Circuit Court wrote.
“We are disappointed in today’s opinion about the Internet Archive’s digital lending of books that are available electronically elsewhere,” Internet Archive said in a statement Wednesday. “We are reviewing the court’s opinion and will continue to defend the rights of libraries to own, lend, and preserve books.”
Internet Archive is currently embattled in another copyright lawsuit over their music digitization project. Universal Music Group, Sony Music Entertainment, and other record labels sued the organization over its collection of music digitized from vintage records.
Should the record labels prevail, damages may exceed $400 million. This case is currently still making its way through the courts.
