The Internet Archive has lost a significant legal battle, in a decision that could have a significant impact on the future of Internet history. Today, the U.S. Court of Appeals for the Second Circuit ruled against the long-standing digital archive, upholding an earlier ruling in Hachette v. Internet Archive which found that one of the Internet Archive’s book digitization projects violated copyright law.
Notably, the appeals court ruling rejects the Internet Archive’s argument that its lending practices were protected by the fair use doctrine, which allows copyright infringement under certain circumstances. calling him “lame.”
In March 2020, the Internet Archive, a San Francisco-based nonprofit, launched a program called the National Emergency Library (NEL). Library closures caused by the pandemic left students, researchers, and readers unable to access millions of books, and the Internet Archive said it was responding to calls from ordinary people and other librarians to help those at home access the books they needed.
The NEL was an offshoot of an ongoing digital lending project called Open Library, in which the Internet Archive scans physical copies of library books and allows people to check out the digital copies as if they were regular reading material rather than e-books. The Open Library loaned books to one person at a time, but the NEL did away with this ratio rule and instead allowed a large number of people to borrow each scanned book at once.
The NEL was the subject of a backlash soon after its launch, with some authors arguing that it amounted to piracy. In response, the Internet Archive, within two months, abandoned its emergency strategy and reinstated limits on lending. But the damage had already been done. In June 2020, major publishers including Hachette, HarperCollins, Penguin Random House and Wiley filed suit.
In March 2023, the district court ruled in favor of the publishers. Judge John G. Koeltl found that the Internet Archive had created “derivative works,” arguing that there was “nothing transformative” about its copying and lending. After the initial ruling in Hachette v. Internet ArchiveThe parties agreed to the terms of the settlement (the details of which were not disclosed), although the file has yet to file an appeal.
James Grimmelmann, a professor of digital and Internet law at Cornell University, says the verdict is “not terribly surprising” in the context of how courts have recently interpreted fair use.
The Internet Archive achieved a pyrrhic victory on appeal. Although the Second Circuit sided with the district court’s initial decision, it clarified that it did not consider the Internet Archive to be a commercial entity, and instead emphasized that it was clearly a nonprofit operation. Grimmelmann believes this is the correct decision: “I am glad to see that the Second Circuit corrected that error” (he signed an amicus brief on appeal arguing that it was incorrect to classify the use as commercial).
Internet Archive’s legal troubles are not over. In 2023, a group of record labels, including Universal Music Group and Sony, defendant The archive is involved in a copyright infringement case in connection with a music digitization project. That case is still making its way through the courts. Damages could reach $400 million, an amount that could pose an existential threat to the nonprofit.
The new verdict comes at a particularly tumultuous time for copyright law. Dozens of copyright infringement cases have been filed over the past two years against major AI companies offering generative AI tools, and many of the defendants in these cases argue that the fair use doctrine protects their use of copyrighted data in training AI. So any major lawsuits in which judges reject fair use claims will be closely watched.
It also comes at a time when the Internet Archive’s outsized importance in digital preservation is keenly felt. The archive’s Wayback Machine, which catalogues copies of websites, has become a vital tool for journalists, researchers, lawyers and anyone interested in the history of the internet. While other digital preservation projects exist, including national efforts by the U.S. Library of Congress, there is nothing like it available to the public.
