By Eli Tan
When public libraries nationwide temporarily shut down during the initial phase of the pandemic, the Internet Archive, an organization dedicated to digitizing and preserving materials such as webpages and music, proposed making its scanned book collection freely accessible in an online database.
The legality surrounding this library sparked a prolonged saga that may have reached its conclusion last week, with an appeals court ruling that the Internet Archive infringed copyright laws by redistributing those books without appropriate licensing.
The ruling, from the 2nd U.S. Circuit Court of Appeals in New York, stands as a win for the major book publishers that initiated the lawsuit in 2020 and could establish a precedent regarding the legality of broader digital archives.
“The defendant tried to accomplish what had not been done previously, which was to classify unauthorized distribution of whole books as ‘lending’ without consent,” stated Maria A. Pallante, president of the Association of American Publishers, which helped orchestrate the industry’s response. “Naturally, we are thrilled” with the outcome, she remarked.
In March 2023, a federal court ruled unfavorably against the Internet Archive, leading it to remove numerous works from its online book collection. It filed an appeal last September.
A final appeal could potentially advance to the Supreme Court. In a statement, the Internet Archive indicated it was “reviewing the court’s opinion and will continue to advocate for libraries’ rights to own, lend, and preserve books.”
In its appeal, the nonprofit contended that its Free Digital Library fell under the protections of fair use laws and that scanning the books constituted a transformative use of the material executed in the public interest. The court categorically dismissed this argument.
“To characterize the Internet Archive’s ‘use of the works as transformative would significantly narrow — if not completely eliminate — copyright owners’ exclusive right to create derivative works,” stated the decision. “If we were to validate IA’s use of the works, there would be minimal incentive for consumers or libraries to compensate publishers for content they could freely access via IA’s website.”
The library had been operational long before the pandemic, employing a system it referred to as “digital lending,” allowing users to read copies of scanned books one at a time. During the pandemic, the Internet Archive lifted the viewing restrictions.
In its plea to the publishers to overturn the lower court’s ruling, the Internet Archive disclosed that it had eliminated over 500,000 books from its public archive.
“People are anxious about book bans and library funding cuts, but I don’t think there is a substantial awareness of what’s happening with the shift toward license-only access to digital content,” Brewster Kahle, the founder and digital librarian of the Internet Archive, mentioned in an interview on Wednesday.
Libraries are “not merely a Netflix for books for their users,” he further asserted. “Libraries have always represented more than that.”
In contrast to conventional libraries, which pay licensing fees to publishers for lending their books, the Internet Archive acquires copies through donations or purchases to digitize and share online. The nonprofit is also recognized for the Wayback Machine, a well-known repository of past web pages.
Pallante expressed hope that the ruling would impact artificial intelligence companies that scrape data from book publishers and other sources for their offerings, potentially undermining a publisher’s derivative rights concerning the treatment of its works.
“It’s unacceptable to simply infringe upon those derivative rights,” she stated.
