What Is Happening with the Internet Archive Lawsuit?

We catch up on this important case.

Getting back up to speed 

Earlier this year, we covered the Hachette et al. v. Internet Archive (IA) lawsuit filed over Internet Archive’s controlled lending program, Open Library. Through this program, IA lent digital scans of the physical copies of books held by it or its partner libraries to online patrons. During the pandemic, IA removed the caps on its controlled borrowing protocols—which limited the number of books able to be borrowed digitally to the number of physical copies held—to allow as many users to borrow the books as wanted. These materials included books currently under copyright. This sparked the ire of the publishing industry, and Hachette filed a lawsuit against IA for violating copyright law. 

Both the plaintiff and the defendant avoided a trial by filing for a summary judgment—in which the judge, rather than a jury, makes a decision based on the evidence alone. Some librarians rallied in support of IA, arguing that IA constituted a library and had certain privileges, vis-à-vis copyright, that comes with that designation. The judge ultimately sided with Hachette, though as the copyright lawyer we spoke to in wake of the decision pointed out, the judge sidestepped the question of whether IA constitutes a library. The judge focused instead on the fair use requirement for “transformational use,” which he declared was absent in IA’s dissemination of copyrighted material. 

After the decision was announced, IA stated that it would appeal the decision, and months later, here we are. 

Why is Internet Archive in the news again?

On August 11, the publishers and IA submitted a proposed consent judgment to the court. A consent judgment, in short, affirms the decision of the lower court—though, notably, it keeps open the ability of the defendant to appeal—and establishes an agreement between parties to settle the debt in the meantime without the use of a trial. In a statement, the Association of American Publishers (AAP) describes the nature of the proposal

The proposed consent judgment provides for a stipulated permanent injunction preventing Internet Archive from offering unauthorized copies of the Plaintiffs’ books to the global public under the manufactured theory of “controlled digital lending,” and indicates that the parties have reached a confidential agreement on a monetary payment, all subject to Internet Archive’s right to appeal the case. 

The judge quickly approved this agreement

What will happen with Internet Archive? 

IA announced that it “intends to appeal,” though an appeal may be very costly if it loses. In the meantime, IA will “abide by the court’s injunction” to remove many books from its catalog. It has eked out a small victory through the consent judgment process: the judge determined IA could continue scanning copyrighted books in cases where publishers do not have eBook copies available. Further, this injunction does not interrupt IA’s digitization efforts and other services. 

But the Hachette lawsuit is not the only dark cloud on IA’s horizon. In light of the Hachette ruling, a group of record labels, including UMG Recordings, Capitol Records, Concord Bicycle Assets, CMGI, Sony Music Entertainment, and Arista Music, has filed their own lawsuit against IA, also on copyright grounds. The plaintiffs suggest that damages could be more than $400 million. These lawsuits remain important to us, because they evaluate the possibility of having a large-scale library on the internet.

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