On June 1, 2020, four book publishers — Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC (collectively, the “Publishers”) — sued Internet Archive for copyright infringement related to the scanning of tens of thousands of Publishers’ literary works and distributing digital copies to the public for free. Internet Archive purported to rely on a contrived theory called controlled digital lending (“CDL”) to scan and distribute digital copies of books to the public without a license. According to Internet Archive, its CDL program makes available no more digital copies of a book than the number of print copies of the book in its possession (what it described as a one-to-one “owned to loaned ratio”). However, in response to the COVID-19 pandemic and the accompanying closure of libraries, Internet Archive launched the National Emergency Library through which it lifted restrictions on its “owned to loaned ratio” and allowed up to 10,000 digital copies of any one book to be disseminated concurrently.
In March 2023, the District Court for the Southern District of New York granted summary judgment for the Publishers and, in doing so, denounced Internet Archive’s CDL theory as clear copyright infringement because it amounted to the unauthorized reproduction and distribution of copyrighted works in digital form.
The court also soundly rejected Internet Archive’s fair use defense. On the first factor, which considers the character and purpose of the use, the court emphasized that Internet Archive’s digital scanning and distribution was not “transformative” because it did not alter the purpose and character of the books “with new expression, meaning or message.” In the court’s view, simply digitally reproducing and distributing the books plainly violated the Publishers’ exclusive rights. Also on the first factor, the court noted that Internet Archive’s status as a non-profit and its free dissemination of the books did not render its actions “noncommercial” because such actions were designed to “attract new members, solicit donations, and bolster its standing in the library community.”
The court then concluded that three remaining fair use factors — the nature of the copyrighted works, the amount and substantiality of the portions used, and the effect upon the potential market for the copyrighted books — all favored the Publishers. Regarding the nature of the works, the court stated that creative works such as the fiction books involved in the case are at “the core of copyright’s protective purposes,” and even the accompanying nonfiction books have creative value in the “subjective descriptions and portraits … whose power lies in the author’s individualized expression.” Furthermore, Internet Archive copied and disseminated the entirety of the books at issue. Finally, noting the relation between the first, third, and fourth factors, the court explained that the Publishers were deprived of benefiting from a “thriving ebook licensing market for libraries” as a result of Internet Archive’s rote, unlicensed copying and lending of the entirety of the Publishers’ books.
Status: District court granted Publishers’ motion for summary judgment and denied summary judgment for Internet Archive. The parties submitted a joint proposal for the appropriate procedure to determine judgment in the case, although the Internet Archive has said that it will appeal the decision.
District Court for the Southern District of New York (2023)
- Proposed Consent Judgment (Aug. 11, 2023)
- Opinion (Mar. 24, 2023)
- Hachette Book Group et al. Complaint
- Internet Archive et al. Answer
In support of plaintiffs (Hachette Book Group et al.)
- Authors Guild, Inc. et al.
- Copyright Alliance
- Copyright Professors (Jaqueline Charlesworth)
- International Publishers Association et al.
In support of defendants (Internet Archive et al.)
- Authors Alliance
- Copyright Scholars (Jason Schultz)
- Intellectual Property Law Professors (Rebecca Tushnet)
- Kenneth D. Crews and Kevin L. Smith
- Library Futures Institute et al.
- Michelle M. Wu
Copyright Alliance Blogs
- Internet Archive Continues to Harm Authors
- The Emergence of Copyright Looting
- Internet Archive’s “Emergency Library”: A Wolf in Sheep’s Clothing
- Copyright: U.S. Court Rules Against Internet Archive (Publishing Perspectives)
- Controlled Digital Lending is a Dubious Proposal in Every Sense (Illusion of More)
- Internet Archive Defender Alleges the Second Circuit Doesn’t Know the Law (Illusion of More)
- If the Campaign Targeting eBooks is Reasonable, Why Lie About Copyright Law? (Illusion of More)