The Internet Archive Lawsuit Enters its Appeal Stage 

Internet Archive removed 500,000 books from its collections, setting the stakes

Posted on July 10, 2024 in Blog Posts

Authors:

Daniel Pfeiffer
A law book, useful for the Hachette v. Internet Archive lawsuit

The Internet Archive is back in the news now that its appeal case has started up. We covered the original case when it went to court in spring 2023 and spoke to a copyright lawyer about the “fair use” clause in copyright agreements at the center of the case. The Internet Archive is regarded as the largest experiment in digital libraries, so this case has naturally captured much attention among the library community and has ramifications for the future of digital library endeavors. 

Catching up on the Internet Archive lawsuit 

Publishing company Hachette launched a lawsuit against the Internet Archive in mid-2020 over the latter’s Open Library repository. The library had more than 20 million digitally scanned books and allowed patrons to access several thousands of them, collected from more than 150 libraries and publishers, via a controlling borrowing program, like those traditional libraries use to lend eBooks to patrons. At the start of COVID, however, Open Library removed its lending caps, allowing multiple patrons to borrow copies of its holdings, which sparked the lawsuit. 

Among other charges, the lawsuit alleged: 

  • The Internet Archive is “engaged in willful mass copyright infringement” without “any license or any payment to authors or publishers”; 
  • The scale of the Internet Archive’s operations far exceeds that of a normal library’s and “constitute[s] willful digital piracy on an industrial scale”; 
  • The Internet Archive hosts many in-copyright books, which makes it into a “direct substitute for established markets”; and 
  • The concept of fair use does not apply to the mass distribution of copyrighted materials 

In March 2023, the case was decided via a summary judgment—a legal proceeding in which the judge, rather than a jury, makes a decision based on the evidence alone—in favor of Hachette. In August of that year, both parties submitted a proposed consent judgment, which affirmed the decision of the lower court, while leaving open the possibility of an appeal, and established a path for settling the debt without a trial. Internet Archive announced its plan to appeal at that time, and here we are. 

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The lead-up to the appeal 

Between the initial ruling and the appeal, the situation has continued to develop. Both sides have filed several amicus briefs, which non-parties to a lawsuit submit to provide additional information or support for a ruling. For instance, several publishers, though not parties to the lawsuit, threw their support behind Hachette and underscored the potential harm of an overturning to the publishing industry, including themselves. Other organizations, notably the American Library Association, filed amicus briefs taking issue with some of the lower court’s reasoning and clarifying the stakes of copyright decisions to libraries writ large. As the ALA brief states, “It is … vitally important that this Court give due consideration to the impact of its opinion on not only the use immediately before it, but also the innumerable other uses that libraries may make now or in the future which may differ meaningfully from the instant case.” 

In late June 2024, the Internet Archive removed more than 500,000 books from its collections in accordance with the lawsuit. This sudden loss has sparked outrage from people around the world, and the Internet Archive has started a petition to restore access to these titles. It already has more than 37,000 signatures. 

The appeal case begins 

Oral arguments for the appeal case began on June 28, 2024, in front of a three-judge panel. The Internet Archive submitted a summary of its arguments ahead of time. The two spokes of its fair use argument stem from the same contention: digital libraries are not fundamentally different from physical libraries. The first spoke is that controlled digital lending is no different from the practice of physical book lending because the number of books loaned is the same as the number of books owned. The second spoke is that physical libraries are not geographically limited in reach but open to everyone who comes to them and controlled digital lending “simply enables modern libraries to carry out their time-honored missions in the more efficient and effective way digital technologies allow.” 

Both Publishers Weekly and the Authors Alliance covered the opening oral arguments, which the Internet Archive has uploaded, and had similar impressions: the judges are skeptical of the claims of both sides. How the appeal will land seems very much up in the air. 

Final commentary 

As I said in my last post on this lawsuit, Hachette v. Internet Archive questions the possibility of having a large-scale library on the internet. What was notable about the initial decision, as copyright lawyer Jonathan Band observed, is that the judge sidestepped the issue of whether the Internet Archive is, in fact, a library and focused instead on fair use requirements, namely transformative use. In his decision favoring Hachette, the judge used this latter point to determine that the Internet Archive’s use was commercial, rather than noncommercial, and thus a harm to the publishing industry. 

At the time, Band noted that this reasoning was weak, and it looks like Internet Archive seeks to press it. Its appeal strategy explicitly ties fair use to Internet Archive’s status and mission as a library. During oral arguments, the appeal judges seemed skeptical of the Internet Archive’s commercial motive. While it would appear that the appellate judges may sweep the lower court’s reasoning aside it isn’t yet clear that they will offer a different outcome. 

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