The Internet Archive has suffered a significant setback in its legal battle over the lending of scanned e-books, with the U.S. Court of Appeals for the Second Circuit ruling against the non-profit organization. In a decision published on Wednesday, the court found that the Internet Archive’s digital library permits mass reproduction, thereby depriving creators of compensation and undermining the incentive to create new works.
The ruling in Hachette v. Internet Archive marks another blow to the non-profit organization. In 2020, four major publishers—Hachette, Penguin Random House, Wiley, and HarperCollins—sued the Internet Archive, alleging that its digital library constitutes industrial-scale, willful digital piracy.
For years, the Internet Archive has operated a system called Open Library, which allows users to borrow digital scans of physical books. The library operates on the principle of Controlled Digital Lending (CDL), which posits that each loan is equivalent to purchasing a physical book at a library—ostensibly avoiding copyright infringement claims. This is fundamentally different from services like OverDrive, where publishers sell timed licenses for e-books based on their own terms.
However, the Internet Archive expanded its library project during the COVID-19 pandemic. It launched the National Emergency Library, which allowed an unlimited number of people to access the same e-book copy simultaneously. This move prompted the publishers to file a lawsuit, targeting both the Open Library and the National Emergency Library.
The Second Circuit acknowledged the pros and cons of the Internet Archive’s digital library in its ruling but ultimately sided with the publishers:
On one hand, e-book licensing fees might burden libraries and reduce access to creative works. On the other hand, authors are entitled to compensation when their original works are copied and distributed. Congress has balanced these competing demands of the public interest in the Copyright Act. Here, we must adhere to that balance.
Last year, a federal judge ruled that the Internet Archive did not have the right to scan and lend books in the manner of a library. The Internet Archive later appealed this decision.
Chris Freeland, the Internet Archive’s library services director, expressed his disappointment in an article posted on the organization’s website: We are disappointed with today’s opinion regarding the Internet Archive’s practice of lending books in a digital format that are already available as e-books elsewhere. We are reviewing the court’s opinion and will continue to defend the rights of libraries to own, lend, and preserve books.
Freeland also pointed out that ordinary people can sign a petition to restore access to 500,000 books restricted by publishers. We urge readers to sign an open letter to the publishers in Hachette v. Internet Archive, he wrote, providing a link to the petition.
The Internet Archive’s CDL model was designed to function as a traditional library, with the exception that it provided digital copies of books. The publishers argued that this model was a form of piracy, as it allowed for the creation of multiple digital copies without permission or payment to authors and publishers.
The court’s decision hinges on the interpretation of copyright law and the balance between the rights of creators and the public interest in accessing information. While the Internet Archive argued that its actions were protected under fair use and the first sale doctrine, the court found that the mass reproduction and lending of digital books without authorization undermined the market for those works.
The ruling has significant implications for the future of digital libraries and the accessibility of books online. It sets a precedent that could potentially limit the ability of libraries to provide digital copies of books without the explicit permission of publishers.
In response to the ruling, the Internet Archive has vowed to continue its fight. We are committed to ensuring that the Internet Archive continues to serve the public by providing access to knowledge and information, Freeland stated. We will explore all options to defend the rights of libraries and readers.
As the digital landscape continues to evolve, the battle between publishers and digital libraries is likely to persist, with the balance between copyright protection and public access remaining a central issue.
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