After more than four years of litigation, a closely watched copyright case over the Internet Archive’s scanning and lending of library books is finally over after Internet Archive officials decided against exercising their last option, an appeal to the Supreme Court. The deadline to file an appeal was December 3.
With a consent judgment already entered to settle claims in the case, the official end of the litigation now triggers an undisclosed monetary payment to the plaintiff publishers, which, according to the Association of American Publishers, will “substantially” cover the publishers’ attorney fees and costs in the litigation.
“While we are deeply disappointed with the Second Circuit’s opinion in Hachette v. Internet Archive, the Internet Archive has decided not to pursue Supreme Court review,” reads a December 4 statement posted on the Internet Archive’s blog. “We will continue to honor the Association of American Publishers (AAP) agreement to remove books from lending at their member publishers’ requests.” The post added that the IA would continue work with supporters "to advocate for a future where libraries can purchase, own, lend, and preserve digital books.”
The end of the case comes after a three-judge panel of the Second Circuit Court in September delivered a swift and unequivocal decision that unanimously affirmed judge John G. Koeltl’s March 24, 2023, summary judgment ruling, which found the Internet Archive's program to scan and lend print library books to be copyright infringement.
“This appeal presents the following question: Is it ‘fair use’ for a nonprofit organization to scan copyright-protected print books in their entirety, and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no,” the 64-page decision reads.
The 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 AAP. The suit specifically involved 127 works from the plaintiff publishers—a sample of the more than 33,000 plaintiff publishers' works said to be included in the Internet Archive's library—with initial court filings suggesting that the lA's collection included more than a total of 3.6 million works potentially under copyright.
Publisher and author groups had long been troubled by the IA's program and the concept of controlled digital lending. But a lawsuit did not appear imminent until March 2020, when the Internet Archive rattled publishers and authors by unilaterally launching its now shuttered National Emergency Library initiative, which temporarily removed restrictions on the IA's collection in response to the pandemic closures of schools and libraries.
In a statement, AAP reps celebrated what they characterized as a complete legal victory.
“After five years of litigation, we are thrilled to see this important case rest with the decisive opinion of the Second Circuit, which leaves no room for arguments that ‘controlled digital lending’ is anything more than infringement, whether performed by commercial or noncommercial actors, or aimed at authorship that is creative or factual in nature,” said AAP president and CEO Maria Pallante, in a statement. “As the Court recognized, the public interest—and the progress of art and science that is the mandate of the Constitution’s copyright clause—is served best when authors and their publisher licensees can decide the terms on which they make their works available.”
Meanwhile, the Internet Archive’s legal battles are not quite over. The IA is facing a similar, follow-on suit filed by a group of major record labels over its "Great 78" program, which collects vintage 20th century 78 RPM recordings, digitizes them, and makes them freely available to the public.
An archive of PW's coverage of the case is here.
