As expected, the Internet Archive this week submitted its appeal in Hachette v. Internet Archive, the closely watched copyright case involving the scanning and digital lending of library books.
In a brief notice filed with the court, IA lawyers are seeking review by the Second Circuit court of appeals in New York of the "August 11, 2023 Judgment and Permanent Injunction; the March 24, 2023 Opinion and Order Granting Plaintiffs’ Motion for Summary Judgment and Denying Defendant’s Motion for Summary Judgment; and from any and all orders, rulings, findings, and/or conclusions adverse to Defendant Internet Archive."
The notice of appeal comes right at the 30-day deadline—a month to the day after judge John G. Koeltl approved and entered a negotiated consent judgment in the case which declared the IA's scanning and lending of the plaintiffs' copyrighted works to be copyright infringement, as well as a permanent injunction that, among its provisions, bars the IA from lending unauthorized scans of the plaintiffs' in-copyright, commercially available books that are available in digital editions.
"As we stated when the decision was handed down in March, we believe the lower court made errors in facts and law, so we are fighting on in the face of great challenges," reads a statement announcing the appeal on the Internet Archive website. "We know this won’t be easy, but it’s a necessary fight if we want library collections to survive in the digital age."
The copyright infringement lawsuit was first filed on June 1, 2020, in the Southern District of New York by Hachette, HarperCollins, Penguin Random House, and Wiley, and organized by the Association of American Publishers.
After more than three years of litigation, Koeltl, in a pointed March 24 opinion, found the Internet Archive's scanning and lending of copyrighted books under a legally contested practice known as CDL (controlled digital lending) to be infringement. “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,” Koeltl wrote in a March 24 opinion granting the publisher plaintiffs’ motion for summary judgment and denying the Internet Archive’s cross-motion. “But no case or legal principle supports that notion. Every authority points the other direction.”
In a statement, the AAP said it will "vigorously litigate" the appeal. “The publisher plaintiffs and AAP community stand behind the District Court’s clear opinion in this case, establishing that the Internet Archive’s industrial scale format-shifting activities constitute copyright infringement," the statement reads.
