Understanding the Hatchette v Internet Archive Lawsuit and Ruling

Four publishers (Hachette, HarperCollins, Wiley, and Penguin Random House) sued the Internet Archive after it created a National Emergency Library that ran from March 24, 2020, to June 16, 2020, under its Controlled Digital Lending program (CDL). This was a temporary book collection created from thousands of e-books and was intended to provide reading matter to people in lockdown when physical libraries had to close during the early stages of the pandemic.

Although libraries have been allowed to create and lend out one electronic version (i.e., scanned) for every physical book it owns (in lieu of lending the physical copy, not in addition to), for the National Emergency Library the Internet Archive was lending out multiple copies of a digital book at once, and the four publishers sued over a number of their books included in the collection. The Internet Archive claimed they were operating under the fair use doctrine, but the publishers have sued for mass copyright infringement.

On March 25, 2023, a United States court ruled against the Internet Archive in the lawsuit filed by the four publishers. The court's decision probably has some implications for libraries, readers, authors, and the digital preservation of cultural artifacts. 

The Internet Archive's Perspective 

The Internet Archive established the CDL program to provide online access to books and promote research and learning. CDL allows users to borrow digital copies of books for a limited period, simulating traditional library lending. The Internet Archive and its partner libraries argue that CDL operates under the fair use doctrine, as libraries have always been able to lend books to their patrons. They maintain that CDL ensures that the public can fully utilize the books libraries have purchased and preserved, especially in an emergency.

The Internet Archive claims that their data shows that CDL has not negatively impacted publishers' revenues. Libraries have paid billions of dollars to publishers for their print collections and are investing significant resources in digitization efforts. The Internet Archive believes that their activities align with the mission of libraries to serve patrons as intended. They intended to appeal the court decision. 

The Court's Ruling 

Judge John G. Koeltl ruled against the Internet Archive, stating that CDL does not qualify as fair use. The Internet Archive engaged in unauthorized distribution and lending of more copies of copyrighted books than it paid for, and in addition does not transform the use of the works. Acquiring a print book does not entitle the recipient to make unauthorized digital copies and distribute them.

It is interesting that the judge highlighted the absence of transformative elements in the Internet Archive's actions, explaining that transformative works lie at the core of fair use. Merely repackaging or republishing the original works cannot be considered fair use. In his ruling, Judge Koeltl rejected the Internet Archive's claim that CDL benefits publishers in other markets, emphasizing that such benefits cannot offset the harm inflicted on publishers' ebook revenues.

Implications for Libraries, Authors, and Copyright Protection 

The court's decision is seen as a major win for authors, publishers, and associated creative industries. It upholds the importance of copyright protection and sets a precedent against unauthorized distribution and lending of copyrighted materials. Scanning and lending books without permission or compensation devalues authors' works and constitutes copyright infringement.

Advocates for copyright protection, such as the Association of American Publishers and the Authors Guild, have welcomed the court's decision. Libraries play a crucial role in supporting authors by legally purchasing and licensing books. Library licensing generates income for authors resident in the same country as the library, helping sustain their work.

International publishers, represented by the International Publishers Association (IPA), have also expressed their appreciation for the court's ruling. They highlight the global significance of copyright protections and stress the need for compliance with international copyright and related rights treaties.

The Hatchette v Internet Archive lawsuit and the subsequent court ruling have sparked debates about the balance between digital access to books and copyright protection. While the Internet Archive's CDL program aimed to provide broader access to knowledge at a difficult time, the court's decision underscores the importance of respecting authors' and publishers' rights. Copyright protection plays a vital role in supporting creativity, ensuring authors receive compensation for their work, and maintaining the economic viability of the publishing industry. 

While I have always valued the Internet Archive's role in archiving and "backing up" our internet and collective knowledge, and I also think there was merit in the idea of providing access to reading and study material in the unprecedented emergency of the pandemic, I do think the Internet Archive overstepped itself in this case and did infringe on copyright. It should be up to the rights holder as to whether they opt in to such a program, for how long, and for how many copies. This would be a lot more work for the operators of the program, but much fairer all round.  

Elle Carter Neal is the author of the middle grade fantasy The Convoluted Key (first in the Draconian Rules series), the picture book I Own All the Blue, and teen science-fantasy novel Madison Lane and the Wand of Rasputin (first in the Grounded series). She is the editor of the re-release of Angela Brazil's 1910 book The Nicest Girl in the School. Elle is based in Melbourne, Australia. Find her at ElleCarterNeal.com.

Photo by Amanda Meryle Photography