The Internet Archive has lost an appeal filed against it by several major book publishers, who accuse it of copyright infringement over its digital book lending program.
In its ruling, a panel of judges on the U.S. Court of Appeals for the Second Circuit ruled that the Open Library’s digital lending program violates copyright law. The nonprofit library had tried to argue that its business of scanning printed books and making digital copies available for lending was protected under the “fair use” rules of copyright law, but the judges agreed with a district court ruling last year that the Open Library failed to meet the criteria needed to qualify for such protection.
In a statement, the Internet Archive said: “We are disappointed with today’s opinion regarding the Internet Archive’s ability to lend books online that are available online elsewhere. We are reviewing the court’s opinion and will continue to defend the rights of libraries to own, lend, and preserve books.”
“This ruling upholds the rights of authors and publishers to license and receive compensation for their books and other creative works, and reminds us unequivocally that infringement is costly and contrary to the public interest,” said Maria Pallanti, president and CEO of the Association of American Publishers.
In June 2020, book publishers—Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House—filed a lawsuit against the Internet Archive after the Internet Archive launched its “National Emergency Library.” By then, the archive had been scanning and lending books online on a per-ownership and loan basis for years. However, the National Emergency Library lifted those restrictions to make texts more widely available as schools and libraries closed during the pandemic.
Although the National Emergency Library brought the suit, the district court and appeals court rulings concerned the archives’ controlled digital lending program as a whole. The appeals court said the Open Library did not meet the necessary standards for fair use protection, saying that “there is nothing transformative about the National Library’s use” of the books, or the controlled digital lending program, because “their digital copies serve the same purpose as the originals.”
The appeals court also said that the archive was not eligible for some of the protections from copyright infringement that traditional libraries enjoy. “The archive does not perform the traditional functions of a library; it makes derivatives of the publishers’ works and delivers those derivatives to its users in their entirety,” it said. “Section 108 [of the Copyright Act] “Allowing libraries to make a small number of copies for preservation and replacement purposes does not mean that the IA can prepare and distribute derivative works en masse and claim that they are simply performing the traditional functions of a library.”
In concluding their ruling, the judges said that the International Copyright Association had asked the court to “permit the widespread copying and distribution of copyrighted books without the permission of, or payment to, the publishers or authors.” They continued: “Such a ruling would allow widespread copying, depriving creators of compensation and reducing the incentive to produce new works. Perhaps this is what the International Copyright Association and its partners want.” friends “That would be preferable, but that is not the approach that copyright law allows.”
When the District Court ruling was handed down last year, the APA issued a statement outlining the terms of the settlement, which remain unchanged and will take effect once a final judgment is rendered that cannot be appealed. Regarding the financial damages, the APA said the amount was “confidential,” but that “its attorneys’ fees and costs in the litigation since 2020 have been substantially reimbursed.”
It is not yet clear whether any of the authors being sued (or their estates) will receive any part of the compensation. When contacted for comment, a representative for the Australian Paediatric Association said: “The terms of the monetary payment are confidential.”
The archive is also facing a similar copyright infringement lawsuit from several major record labels and music rights holders. They filed suit last year against the archive’s Great 78 Project, which aims to digitize and preserve 78-rpm shellac discs.
