In a brief filed this morning, the publisher plaintiffs in Hachette v. Internet Archive asked the Second Circuit court of appeals to uphold Judge John G. Koeltl's March 2023 unequivocal decision finding the Internet Archive's scanning and lending of library books to be copyright infringement.

The filing comes after lawyers for the Internet Archive argued in their December, 2023 opening appeal brief that Koeltl misunderstood the facts and misapplied the law in finding that IA’s scanning and lending of print library books under a novel practice known as controlled digital lending (CDL) infringed publishers’ copyrights, and should be reversed.

In their response, attorneys for the publishers reiterated the arguments that brought them victory in the lawsuit and hammered away against controlled digital lending, calling it “a frontal assault on the foundational copyright principle that rightsholders exclusively control the terms of sale for every different format of their work.”

Moreover, the brief states, “there is nothing transformative about IA’s CDL practices because it does nothing ‘more than repackage or republish’ the Works.” The publisher brief stresses that the original court decision rejected the IA’s fair use argument over the distribution of what the brief called IA’s “bootleg" e-books.

"In short, IA’s practice of CDL is radical and unlawful," the brief states. "A decision deeming CDL fair use would have a dire impact on book publishing and all creative industries. Libraries around the country could skirt the current library e-book markets, fundamentally interfering with the Publishers’ digital strategies and destabilizing book markets. More broadly, other technology companies could implement their own unchecked mass-digitization programs for books and other media, including movies, music and video games, thus seizing control of digital distribution and misappropriating valuable intellectual property."

The Internet Archive filed its notice to appeal in the case in September. In filing the appeal, the IA wrote that, “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 publishers Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House filed the lawsuit in the U.S. District Court for the Southern District of New York in spring 2020.

The suit, coordinated by the Association of American Publishers, followed the creation of the National Emergency Library by IA that March, which removed access restrictions for some 1.4 million scans of books in its Open Library initiative and made them available for unlimited borrowing during the Covid-19 outbreak. The action, which IA quickly stopped, drew outrage from publishers and authors.