A federal judge has sided with four publishers who sued an online archive over its unauthorized scanning of millions of copyrighted works and offering them for free to the public. Judge John G. Koeltl of U.S. District Court in Manhattan ruled that the Internet Archive was producing “derivative” works that required permission of the copyright holder.
The Archive was not transforming the books in question into something new, but simply scanning them and lending them as ebooks from its web site.
“An ebook recast from a print book is a paradigmatic example of a derivative work,” Koeltl wrote.
The Archive, which announced it would appeal Friday’s decision, has said its actions were protected by fair use laws and has long had a broader mission of making information widely available, a common factor in legal cases involving online copyright.
“Libraries are more than the customer service departments for corporate database products,” Internet Archive founder Brewster Kahle wrote in a blog post Friday. “For democracy to thrive at global scale, libraries must be able to sustain their historic role in society — owning, preserving, and lending books. This ruling is a blow for libraries, readers, and authors and we plan to appeal it.”
In June 2020, Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House sued in response to the Archive’s National Emergency Library, a broad expansion of its ebook lending service begun in the early weeks of the pandemic, when many physical libraries and bookstores had shut down. The publishers sought action against the emergency library and the archive’s older and more limited program, controlled digital lending (CDL). Works by Toni Morrison, J.D. Salinger and Terry Pratchett were among the copyrighted texts publishers cited as being made available.
While the Authors Guild was among those opposing the emergency library, some writers praised it. Historian Jill Lepore, in an essay published in March 2020 in The New Yorker, encouraged readers who couldn’t afford to buy books or otherwise were unable to find them during the pandemic to “please: sign up, log on, and borrow!” from the Internet Archive.
In a statement Friday, the head of the trade group the Association of American Publishers, praised the court decision as an “unequivocal affirmation of the Copyright Act and respect for established precedent.
“In rejecting convoluted arguments from the defendant, the Court has underscored the importance of authors, publishers, and lawful markets in a global society and global economy. Copying and distributing what is not yours is not innovative — or even difficult — but it is wrong,” said Maria Pallante, the association’s president and CEO.
The Internet Archive, founded in 1996, is a nonprofit “founded to build an Internet library, with the purpose of offering permanent access for researchers, historians, and scholars to historical collections that exist in digital format.” Unlike traditional libraries, it does not acquire books directly through licensing deals with publishers, but through purchases and donations. The archive also includes millions of movies, TV shows, videos, audio recordings and other materials.