Examine what follows for readers after Internet Archive lost a significant legal battle in the US Court of Appeals for the Second Circuit.
In the US Court of Appeals for the Second Circuit, Internet Archive has lost a significant legal battle. The court decided not to uphold the digital archive, which is extremely helpful, citing a copyright violation in one of the Archive’s digitization projects.
This will lead to the inaccessibility of over 500,000 books for digital lending. A free digital library, Internet Archive features collections of old music and websites that have been discontinued. Their literary offering is their most distinctive one; books are scanned using a special program called Scribe, which is used to archive practically every physical book you have ever laid eyes on.
What is the case about?
The National Emergency Library, or NEL, is a program that was introduced by the nonprofit registered library located in San Francisco in March 2020. The initiative was a reaction to the pandemic-related library closures, which was a regrettable glitch in the system that prevented researchers and students from getting the books they required for their classes.
The Archive, which served as a virtual library prior to the NEL’s founding, let one user check out one book for a set amount of time. The issue started when the NEL did away with the ratio rule and allowed multiple people to borrow the same book simultaneously. Following its launch, the NEL faced tremendous criticism from writers who claimed it was no better than piracy and that the doctrine of fair use did not apply to controlled digital lending (CDL) of full copies.
The Archive responded by bringing back the lending caps, albeit a bit too late. Major publishing houses such as Wiley, Hachette, HarperCollins, and Penguin Random House filed the lawsuit in June 2020. The case is mainly about the fair use of CDL for complete copies of specific books; it has nothing to do with showing excerpts, a restricted number of page views, search results, out-of-print or copyright books, or books that aren’t currently available as an ebook. In March 2023, the district court made its first ruling in the publishers’ favor.
Considering that the Internet Archive’s lending and copying policies contained “nothing transformative,” Judge John G. Koeltl concluded that the Archive had produced “derivative works.” A negotiated judgment between the parties was reached in August 2023, and part of it included a permanent injunction prohibiting Internet Archive from lending complete copies of some of the plaintiffs’ books through CDL. On September 4, 2024, the appellate court upheld the Archive’s appeal of this decision. The Second Circuit acknowledged that the Internet Archive was unquestionably a nonprofit organization even though it agreed with the district court’s decision.
“Today’s appellate decision upholds the rights of authors and publishers to license and be compensated for their books and other creative works and reminds us in no uncertain terms that infringement is both costly and antithetical to the public interest,” said Maria A. Pallante, president and CEO of the Association of American Publishers, in a statement. If there was any doubt, the Court clarifies that appropriating the value of derivative works that are an essential component of the author’s copyright bundle or transforming entire works into new formats without permission are not considered transformative under fair use jurisprudence.”
What did the defendant have to say?
“We are disappointed in today’s opinion about the Internet Archive’s digital lending of books that are available electronically elsewhere,” said Chris Freeland, director of library services at the Internet Archive, expressing his understandable disappointment. We are examining the court’s ruling and will keep up the defense of libraries’ ownership, lending, and preservation rights of books.
Moreover, the decision was criticized by Dave Hansen of the Author’s Alliance, a nonprofit organization that promotes greater digital access to literature. Researchers are authors. Since writers are readers, IA’s digital library encourages them to write new works and supports their desire for their writings to be read. The biggest publishers and well-known authors may profit financially from this decision, but for the majority, it will ultimately harming more than it will help.”
