Internet Archive Lose Its First Fight to Scan and Lend e-books

    In Hachette , a federal judge ruled against Internet Archive. This lawsuit was brought against itby four book publishers. The judge ruled that the website doesn’t have the right to scan books or lend them out as a library.

    Judge John G. Koeltl ruled that the Internet Archive had only created “derivative works” and would therefore have required authorization from the book’s copyright holders (the publishers) before it could lend them out through its National Emergency Library program.

    The Internet Archive has stated that it will appeal. In a blog post Chris Freeland, director of Open Libraries at Internet Archive, writes that today’s lower court decision Hachette in Hachette is a blow for all libraries and communities we serve. This decision will have a major impact on libraries in the US that rely on controlled digital borrowing to connect patrons with books online. Authors are hurt by the fact that their books cannot be read online if they use unfair licensing models. It also prevents everyone from having access to digital information, which is a problem for all readers.

    Both sides appeared in court Monday. Hachette was joined by HarperCollins and John Wiley & Sons as plaintiffs.

    Judge Koetl examined whether the Internet Archive was operating within the principle of Fair Use. had protected a digital preservation project by Google Books in 2014 and HathiTrust. Fair Use examines whether a copyrighted piece is beneficial for the public, the impact on the copyright holder and how much copy has been made. It also considers whether the use of the work has “transformed” it into something new.

    All Fair Use arguments made by the IA were dismissed by the judge

    Koetl stated that any “alleged advantages” of the Internet Archive’s library were “not outweighing the market harm to publishers,” and that there was no transformative effect of the Internet Archive’s copying and unauthorized lending. He also noted that Google Books’s use was “transformative” as it created a searchable database and not just publishing books online.

    Koetl also rejected the idea that the Internet Archive could theoretically help publishers sell more books. He said there was no direct evidence and it was irrelevant that the Internet Archive had bought its own copies before making copies available to its online audience. The trial data shows that the Internet Archive hosts approximately 70,000 e-book “borrows” per day.

    The Internet Archive’s decision in launching the “National Emergency Library during the covid pandemic led to the lawsuit. This allowed people to access 1.4 million digital books without waiting lists. The Internet Archive’s Open Library program is typically operated under a “controlled electronic lending” (CDL), which allows it to lend out digital copies of a book to one person. However, it removed waitlists in order to make it easier to access those books during the pandemic. CDL systems work differently to OverDrive which can lend you publisher-licensed eBooks. Some were unhappy with the Internet Archive’s decision, and a group of publishers sued it in June 2020. The Archive closed down the program later that month.

    The Internet Archive stated that it will continue to act as a library in various ways, despite this decision. Freeland writes that the case doesn’t affect many of the services the Internet Archive provides with digitized books, including interlibrary loan and citation linking, access to the print-disabled and text and data mining, buying ebooks and ongoing donation and preservation.

    “The publishing community is grateful for the Court’s unequivocal affirmation of Copyright Act” Maria A. Pallante was president and CEO of Association of American Publishers, . The Court rejected arguments that would have allowed fair use of illogical markers. This has highlighted the importance authors, publishers and creative markets in a global community. We are grateful to the thousands of public libraries that provide services for their communities every day through legal eBook licenses. We hope that the opinion will be instructive to the defendant as well as anyone who finds public law inconvenient for their own interests.

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