The four publishing houses’ lawsuit success is upheld in the US Second Court of Appeals: ‘The Internet Archive lost again.’
Image – Getty: Starmaro
By Porter Anderson, Editor-in-Chief | @Porter_Anderson
Pallante: ‘Frontally Rejecting’ the Defendant’s Theory
In an adamantly phrased decision, the United States’ Second Court of Appeals has upheld the findings from March of a lower court, ruling once again that the San Francisco-based Internet Archive‘s practice of scanning copyright-protected print books to deliver digital copies online, in full, free of charge, is, indeed, copyright infringement.
This is the case, originally filed in June 2020, Hachette Book Group et al v. Internet Archive et al, our readers will recall, in which Judge John G. Koeltl of the United States district court in the Southern District of New York produced a 47-page decision, carrying a firm rebuke of the controversial concept of “controlled digital lending” on which the Internet Archive has sought to base its position. When the Internet Archive appealed that March 2023 ruling, four major publishers—Hachette Book Group, HarperCollins Publishers, Penguin Random House, and Wiley—went back to court a year later, in March of this year, with a brief opposing the Internet Archive’s effort to appeal Koeltl’s decision.
It’s that appeal from the Internet Archive that today (September 3) has been rejected by the Second Course of Appeals—another profound victory for the publisher-plaintiffs and the authors and vast readership they represent. The publisher-plaintiffs in this case, supported by statements from the International Publishers Association (IPA) and others:
- Hachette Book Group
- HarperCollins Publishers
- John Wiley & Sons
- Penguin Random House
As theAssociation of American Publishers today writes in a special message to members of various news media, “In the court’s words, ‘Applying the relevant provisions of the Copyright Act, as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no,”
That means “no” to what the AAP has called “a legally absurd theory of fair use” that the Internet Archive attempted to use as its rationale.
Maria A. Pallante
Maria A. Pallante, the AAP president and CEO, says, “Today’s appellate decision upholds the rights of authors and publishers to license and be compensated for their books and other creative works and reminds us in no uncertain terms that infringement is both costly and antithetical to the public interest.
“Critically, the court frontally rejects the defendant’s self-crafted theory of ‘controlled digital lending,’ irrespective of whether the actor is commercial or noncommercial, noting that the ecosystem that makes books possible in fact depends on an enforceable Copyright Act.
“If there was any doubt, the court makes clear that under fair-use jurisprudence there is nothing ‘transformative’ about converting entire works into new formats without permission or appropriating the value of derivative works that are a key part of the author’s copyright bundle.”
A Very Public Confrontation
Many in the American and international book publishing industry will hope that this is a concluding moment in this years-old drama precipitated by the actions of the Internet Archive—once valued and admired by many in the book business. As Andrew Albanese writes at Publishers Weekly today, “With the exception of an en banc hearing before the full Second Circuit, the appeals court decision leaves only the Supreme Court for the Internet Archive, suggesting the case may finally be winding down after years of contentious legal wrangling.”
“Today’s appellate decision upholds the rights of authors and publishers to license and be compensated for their books and other creative works and reminds us in no uncertain terms that infringement is both costly and antithetical to the public interest.”Maria A. Pallante, AAP
At least one factor of some promise in this long legal slog is that the place and purpose of copyright—and the intent of the protections that the courts have said were violated by the Internet Archive—have had their visibility raised in the broader culture. This case took a major question of now-reconfirmed copyright infringement into a level of public view that many such niched issues don’t reach.
“The Internet Archive has long offered a system called the Open Library,” writes Amelia Holowaty Krales at The Verge today, “where users can ‘check out’ digital scans of physical books. The library was based on a principle called ‘controlled digital lending,’ where each loan corresponds to a physically purchased book held in a library—avoiding, in theory, a piracy claim. It’s a fundamentally different system from programs like OverDrive, where publishers sell limited-time licenses to ebooks on their own terms.”
At Bloomberg Law, Kyle Jahner writes,”Four major book publishers again thwarted the online repository’s defense that its one-to-one lending practices mirrored those of traditional libraries, this time at the US Court of Appeals for the Second Circuit. Copying books in their entirety isn’t transformative, and lending them for free competes with the publishers’ own book and ebook offerings, the unanimous panel said.”
In his report at Vice, Luis Prada brings a find simplicity to the actions being reported across such a broad swath of popular tech-related media outlets, writing, “In 2023, the Internet Archive lost that historic copyright case andvowed to appeal.The ruling on that appeal just dropped. The Internet Archivelost again.”
And Pallante and her team point to a couple of the more salient points from today’s decision that says, “If authors and creators knew that their original works could be copied and disseminated [free of charge], there would be little motivation to produce new works. And a dearth of creative activity would undoubtedly negatively impact the public. It is this reality that the Copyright Act seeks to avoid.”
And there’s this: “The Internet Archive’s Free Digital Library does not ‘improve the efficiency of delivering content’ without unreasonably encroaching on the rights of the copyright holder; it offers the same efficiencies as publishers’ derivative works while greatly impinging on their exclusive right to prepare those works.”
More from Publishing Perspectives on copyright ishere, more on ‘controlled digital lending’ ishere, more on the Internet Archive ishere, more on the Association of American Publishers ishere, and more on the International Publishers Association ishere.
- US Publishers File Brief Opposing Internet Archive’s Appeal
- Copyright: US Court Rules Against Internet Archive
- IPA’s Amicus Brief: ‘Global Significance’ in the Internet Archive Lawsuit
- Copyright: American Publishers File for Summary Judgment Against the Internet Archive
- Internet Archive Responds to Publishers’ Copyright Lawsuit
- AAP Member-Publishers File Copyright Infringement Suit Against Internet Archive
- US Senate IP Chief Questions Internet Archive’s ‘National Emergency Library’
- Authors Guild and Society of Authors Allege Copyright Infringement by the Internet Archive
Publishing Perspectives is theInternational Publishers Association’s world media partner.
About the Author
Porter Anderson
Porter Anderson has been named International Trade Press Journalist of the Year in London Book Fair's International Excellence Awards. He is Editor-in-Chief of Publishing Perspectives. He formerly was Associate Editor for The FutureBook at London's The Bookseller. Anderson was for more than a decade a senior producer and anchor with CNN.com, CNN International, and CNN USA. As an arts critic (Fellow, National Critics Institute), he was with The Village Voice, the Dallas Times Herald, and the Tampa Tribune, now the Tampa Bay Times. He co-founded The Hot Sheet, a newsletter for authors, which now is owned and operated by Jane Friedman.
