The future of the Internet’s history could change as we know it after the Internet Archive, a nonprofit digital library website, lost a recent appeals case.
Hachette v. Internet Archive pitted major book publishers in a battle over copyright infringement of the digitization of books. Yesterday, the US Court of Appeals for the Second Circuit upheld a ruling against the Internet Archive’s National Emergency Library (NEL) program for violating copyright laws.
Background: Why Is the Internet Archive Being Sued?
Launched in March 2020, the NEL was a temporary program and subsidiary of the Open Library Initiative, in which the Internet Archive scans and digitizes physical copies of library books. Like a physical library, the Open Library Initiative allowed for a process called “digital lending” in which readers check out the digital copies one person at a time, but the NEL removed the restriction, allowing many people to check out the books at once. The NEL was created due to the pandemic closing libraries throughout the country and it gave readers a way to access materials that they would get at the library at home.
Major publishers were upset at the NEL’s removal of the restriction on the number of lenders and compared it to piracy and a violation of copyright laws, infringing the copyrights of 127 books. This caused the San Francisco-based Internet Archive to reverse course and add the caps back two months later, but the publishers filed a lawsuit in June 2020, due to the financial damages.
The Internet Archive shut down the temporary program sooner than expected due to the copyright lawsuit from the publishers.
In March 2023, the Internet Archive lost the lawsuit after U.S. District Court Judge John G. Koetl of the Southern District of New York sided with publishers: Hachette Book Group, HarperCollins, John Wiley & Sons and Penguin Random House. In Koetl’s opinion that you can read HERE, he stated:
“At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book. But no case or legal principle supports that notion. Every authority points the other direction. Of course, IA remains entitled to scan and distribute the many public domain books in its collection.”
The Internet Archive responded to the suit stating they were going to appeal it on their blog with founder Brewster Kahle expressing:
“Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society—owning, preserving, and lending books.
This ruling is a blow for libraries, readers, and authors and we plan to appeal it.”
What Happened During the Internet Archive’s Appeal?
The major publishers were victorious again as the U.S. Court of Appeals for the Second Circuit in Manhattan sided with the district court’s ruling. Notably, during the appeals, the Second Circuit did not agree with the district court that the Internet Archive is a commercial entity.
You can read the all of the Appellant’s Decision here with Circuit Judge Beth Robinson stating:
“Within the framework of the Copyright Act, IA’s argument regarding the public interest is shortsighted. True, libraries and consumers may reap some short-term benefits from access to free digital books, but what are the long-term consequences? If authors and creators knew that their original works could be copied and disseminated for free, there would be little motivation to produce new works. And a dearth of creative activity would undoubtedly negatively impact the public. It is this reality that the Copyright Act seeks to avoid.”
For their part, the Internet Archive responded to the appeal’s decision in a blog post on their website:
“We are disappointed in today’s opinion about the Internet Archive’s digital lending of books that are available electronically elsewhere. We are reviewing the court’s opinion and will continue to defend the rights of libraries to own, lend, and preserve books.
Take Action
Sign the open letter to publishers, asking them to restore access to the 500,000 books removed from our library: https://change.org/LetReadersRead“
What’s Next for the Internet Archive’s Legal Battles?
As the Internet Archive reviews the court’s opinion and decides if it wants to push the case to the Supreme Court, they have another battle on the horizon. Major record labels sued the Internet Archive for $400 million in copyright infringement last year.
UMG Recordings, Capitol Records, Concord Bicycle Assets, CMGI Recorded Music Assets, Sony Music Entertainment, and Arista Music allege that IA’s Great 78 Project, a community project for the preservation, research, and discovery of 78rpm records that are 70 to 120 years old, according to their site, violates the labels rights to protect pre-1972 records.
The Internet Archive attempted to get a majority of the lawsuit dismissed but back in May, a California federal court ruled against it. The Internet Archive tried to argue that the label’s arguments were time-barred due to the three-year limitations of the cease-and-desist letters sent in July 2020, however, the court dismissed that argument but U.S. District Judge Maxine Chesney did allow IA to make that defense again at a later time.
The Internet Archive’s mission statement is ” to provide universal access to all knowledge” and with the Great 78 Project, the digital library is trying to digitize an obsolete formant from a bygone era.
“There’s no way to predict if the digital versions of these 78s will outlast the physical items, so we are preserving both to ensure the survival of these cultural materials for future generations to study and enjoy,” from their site about the project.
As of today, the Internet Archive contains over 835 billion web pages, 44 million books and texts, 15 million audio recordings (including 255,000 live concerts), 10.6 million videos (including 2.6 million Television News programs), 4.8 million images, 1 million software programs and these numbers keep growing. But as copyright claims continue to mount up some of this media could end up being lost to history.