The Internet Archive Loses Major Copyright Battle: Implications for Digital Libraries and Fair Use
The Internet Archive, a non-profit organization dedicated to preserving digital culture, has suffered a major setback in its ongoing battle with major publishing houses. The US Court of Appeals for the Second Circuit, in a decision that could have profound consequences for digital libraries and the future of internet history, upheld a lower court ruling against the archive’s book digitization project. This decision effectively limits the fair use doctrine which permits certain instances of copyright infringement for the public good, particularly in the context of libraries and digital lending.
The case, Hachette v. Internet Archive, revolves around the National Emergency Library (NEL), a program launched by the Internet Archive in March 2020 during the COVID-19 pandemic. The program aimed to solve the problem of library closures by allowing users to borrow digitized versions of physical books, removing the usual one-at-a-time lending restrictions.
The NEL was an extension of the Open Library, a digital lending project where the Internet Archive scans physical copies of library books and makes them available for digital checkout. The crucial difference was that the NEL allowed for simultaneous lending of the same book to multiple users, effectively bypassing traditional copyright limitations.
The program, however, was met with immediate backlash from authors and publishing houses. They argued that the NEL, by allowing unlimited access to copyrighted works, amounted to piracy. This critique was partly justified by the fact that many of the books digitized by the Internet Archive were already available in electronic format.
In response to these criticisms, the Internet Archive ended its NEL program after just two months and reverted to its traditional one-at-a-time lending model. However, the damage had already been done. In June 2020, major publishing houses, including Hachette, HarperCollins, Penguin Random House, and Wiley, filed a lawsuit against the Internet Archive.
In March 2023, the district court ruled in favor of the publishers, finding that the Internet Archive’s lending practices constituted the creation of derivative works, a legal term describing unauthorized modifications or adaptations of copyrighted material. The court found that the archive’s practices lacked a transformative purpose that would justify their action under the fair use doctrine.
The Internet Archive appealed this decision to the Second Circuit Court of Appeals. Their primary argument rested on the fair use doctrine, claiming that the NEL constituted a legitimate instance of non-commercial transformative use of copyrighted material. However, the appeals court, like the district court, ultimately rejected this claim.
The court’s decision to uphold the lower court ruling is significant for several reasons. First, it signifies a narrowing of the fair use doctrine, particularly for digital libraries and online lending services. This decision could create a chilling effect on future digital preservation efforts, potentially impeding the ability of libraries and archives to digitize and make available valuable cultural and historical materials.
Furthermore, the court found the Internet Archive’s lending practices to be commercial in nature, despite the archive’s non-profit status. This conclusion is particularly concerning as it raises questions about the future viability of non-profit digital libraries. If the court’s view of the commercial nature of digital lending practices becomes the standard, it could potentially stifle the development of digital libraries and limit their ability to provide crucial public services.
The decision’s impact on the future of internet history is also a cause for concern. The Internet Archive has played a crucial role in preserving and archiving valuable digital content, including websites, software, and books. This decision might limit the archive’s ability to fulfill its mission of preserving and promoting access to digital cultural heritage.
Professor James Grimmelmann, a leading expert on digital and internet law, has described the decision as "not terribly surprising" given the recent trend of court interpretations of fair use. However, he acknowledges the importance of the court’s clarification that the Internet Archive is not a commercial entity.
The Internet Archive, in response to the decision, expressed disappointment while also reiterating its commitment to defending the rights of libraries. They stated their intention to continue fighting for the right to own, lend, and preserve books, suggesting that the legal battle is far from over.
This decision in Hachette v. Internet Archive has significant implications for the future of digital libraries, the fair use doctrine, and the preservation of internet history. It serves as a warning of potential limitations on public access to copyrighted material, the future of non-profit digital libraries, and the preservation of digital cultural heritage.
Key takeaways:
- The court’s decision is a blow to the Internet Archive’s efforts to digitize and lend books, particularly in the context of the NEL program.
- The decision suggests a narrowing of the fair use doctrine, which could have significant implications for digital libraries and other cultural institutions.
- The court’s finding that the Internet Archive’s lending practices are commercial in nature, despite its non-profit status, is concerning for the viability of non-profit digital libraries.
- The decision highlights the complexity of copyright law in the digital age and the need for clearer interpretations that balance authors’ rights with the public interest in access to information.
Going forward, the implications of this case will be closely watched by those concerned with digital libraries, fair use, and the preservation of cultural heritage in the digital age. The debate will likely continue in the legal sphere, forcing us to reconsider the role of copyright in shaping the future of the internet.
