A US federal appeals court on Wednesday held the Internet Archive’s Free Digital Library infringes upon publishers’ copyright protections.
The appeal decision affirms a lower court ruling in a 2023 lawsuit initiated by US publishers which argued that the Internet Archive (IA), a nonprofit organization, engaged in copyright infringement by scanning purchased or donated physical books and providing them to the public at no cost. The Internet Archive claimed their actions were protected by the fair use defense in section 107 of the US Copyright Act, which allows for reproduction of copyrighted works for purposes such as research and scholarship.
The Copyright Act sets out four factors to consider in a fair use defense:
- The purpose and character of the use,
- the nature of the copyright work,
- the amount and substantiality of the copying, and
- the effect on the potential market for the copyrighted work.
At trial, the federal court found that all four factors favored the publishers. The appeal court agreed.
Both courts found that the purpose of IA’s use was not transformative, the nature of the work was close to the core of what copyright was intended to protect, the copying was substantial because it was a complete reproduction, and that offering free copyrighted works “usurped” from the potential market for ebooks, to which US publishers had exclusive copyright.
Judge Beth Robinson of the US Court of Appeals for the Second Circuit wrote the unanimous decision and highlighted the fundamental balancing act of copyright law. She recognized that “the [Copyright] Act therefore reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.” The court held that in this regard, “IA’s Free Digital Library undermines that motivation”.
These arguments, accepted by both courts, were also raised in JURIST commentary where the contributor noted the IA’s legal infirmity and the need for legislative certainty around IA’s digitization of physical books for the public good.
In response to Wednesday’s ruling, the Internet Archive stated:
We are disappointed in today’s opinion about the Internet Archive’s digital lending of books that are available electronically elsewhere. We are reviewing the court’s opinion and will continue to defend the rights of libraries to own, lend, and preserve books.
The appeal was brought by the Internet Archive (IA), a digital library dedicated to preserving the internet’s history and creating an accessible online library for people across the world. For its digital books, it has a one-to-one, owned-to-loaned ratio. For the past decade, it had existed without significant legal challenge from US publishers however a temporary change to its lending program during COVID-19 attracted significant attention, leading to the current lawsuit.
At the outset of the COVID-19 pandemic in March 2020, libraries and schools across the world were shut down. In response, the Internet Archive announced a temporary removal of its one-to-one lending restriction, allowing for up to ten thousand downloads per e-book. This quickly prompted four US publishers to sue the IA for copyright infringement. The IA shortly thereafter reinstated its one-to-one policy.
The Internet Archive may appeal to the US Supreme Court.
