Copyright Case

Hachette Book Group, et al., v. Internet Archive

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 (“IA”) for copyright infringement related to the scanning of tens of thousands of Publishers’ literary works and distributing digital copies to the public for free. IA 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 IA, 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, IA 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 IA’s fair use defense. On the first factor, which considers the purpose and character of the use, the court emphasized that IA’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 digitizing and distributing the books plainly violated the Publishers’ exclusive rights.

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.” The court found that the third factor weighed in favor of the Publishers because IA copied and disseminated the entirety of the books at issue. Finally, addressing the fourth factor, the court explained that the Publishers were deprived of benefiting from a “thriving eBook licensing market for libraries” as a result of IA’s rote, unlicensed copying and lending of the entirety of the Publishers’ books.

After the District Court granted Publishers’ motion for summary judgment and denied IA’s motion for summary judgment, the parties submitted a joint proposal for the appropriate procedure to determine judgment in the case. However, IA appealed the decision to the Court of Appeals for the Second Circuit. Oral arguments were held on June 28, 2024.

On September 4, 2024, the Second Circuit, in an en banc opinion, affirmed the district court’s decision and rejected IA’s fair use defense on all four fair use factors. Under the first factor, the Second Circuit agreed with the lower court that the recasting of physical books to digital formats was not transformative and that a change in the medium of a work was simply an infringement of the right to prepare derivative works. The court also refuted IA’s arguments that its practices were transformative because it increased the efficiency of lending eBooks, noting that unlike in prior case law, IA’s practices did not improve the efficiency of delivering content without greatly impinging and encroaching on the Publishers’ rights. Contrary to the district court opinion, the Second Circuit found that IA’s practices were not commercial in nature, noting that the evidence was insufficient to show IA’s direct profit from the exploitation of the books—but that in any event, the nontransformative nature of IA’s use outweighed noncommerciality. 

The Second Circuit weighed the second factor in favor of the Publishers, agreeing with the lower court that both fiction or non-fiction books are at the “core” of what receives copyright protection. Additionally, the Court weighed the third factor for the Publishers since IA copied and distributed the books in their entirety. Lastly, the Second Circuit affirmed the district court’s ruling that CDL negatively affected the potential market for and value of the works, noting that the relevant market was the market for the Publishers’ books in general and explaining that the Copyright Act protects a copyright owner’s right regardless of a work’s format. The court noted that IA supplanted the market that the Publishers would otherwise rightfully occupy with their licensed eBooks and “conclude[ed] that both Publishers and public will benefit if IA’s use is denied.”

Procedural History

Status: Affirmed by the Second Circuit Court of Appeals.

Second Circuit Court of Appeals (2024)

Amicus Briefs

Second Circuit Court of Appeals

In support of Plaintiffs-Appellees (Hachette Book Group et al.)

In support of Defendant-Appellant (Internet Archive et al.)

In support of neither party

District Court for the Southern District of New York (2023)

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