Basic rules of copyright infringement still apply online in Hachette v. Internet Archive
By Tara Wasik
From banning books due to contentious content to covering the socioeconomic divide in education, access to books has become a huge topic of interest as of late. To mitigate some of these issues, people are viewing texts through new mediums, such as e-books, which saves readers the hassle of going to a physical library or bookstore. But the dangers of the Internet have not escaped the publishing industry, highlighted by huge amounts of book piracy, which costs an annual $300 million in income loss for publishers. Hachette v. Internet Archive demonstrates how the line between what is accessible and what is illegal has become increasingly blurred as we embark further into the digital age.
Traditional library e-book lending programs pay licensing fees to publishers in exchange for making e-books available for a number of checkouts or a period of time. Internet Archive (IA), a 501(c)(3) nonprofit, obtains copies of texts, videos, and images through donations or purchases, scans them, and puts them online. Users can access these copies with a free account, with a certain number of copies available in a lending system. The infamous Wayback Machine, an initiative that allows users to access archived web content, is also part of IA. The Wayback Machine was created with the goal of preserving Internet artifacts to create an Internet library for researchers, historians, and scholars.
Amidst the COVID-19 pandemic, on March 24, 2020, IA launched the National Emergency Library , a “temporary collection of books that supported emergency remote teaching, research activities, independent scholarship, and intellectual stimulation while universities, schools, training centers, and libraries were closed due to COVID-19.” The restrictions of the lending system were removed. The NEL closed on June 16, 2020, showcasing a list of personal statements from librarians and educators across the world that endorsed the short-lived initiative.
Needless to say, publishers were not pleased with the NEL. On June 1, 2020, Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House pursued a federal lawsuit in Manhattan against IA, claiming copyright infringement for over 127 books (the “Works in Suit”) in the NEL collection. The Works in Suit include William Golding’s Lord of the Flies and Toni Morrison’s The Bluest Eye. The trade organization, Association of American Publishers, assisted in coordinating the suit.
Libraries are allowed to lend physical books because the first-sale doctrine, under 17 U.S. Code § 109, allows the owner of a copy to sell or otherwise dispose of that copy without the consent of the author of the copyright. IA lent books based on how many copies they owned, along with copies partner libraries owned. However, the abolishment of the lending system during the pandemic led to controversy over what is protected under copyright.
IA defended the NEL, citing the fair use doctrine under 17 U.S. Code § 107, in the fair use of copyrighted works, such as reproductions, are legally protected for “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Fair use is a statutory exception to copyright infringement.
While IA gears up on one side of the ring, publishers and authors position themselves on the other. Douglas Preston, author and President of the Authors Guild, America’s oldest and largest nonprofit advocacy organization for published authors and journalists, supported the lawsuit: “Internet Archive’s wholesale scanning and posting of copyrighted books without the consent of authors, and without paying a dime, is piracy hidden behind a sanctimonious veil of progressivism. The Internet Archive hopes to fool the public by calling its piracy website a ‘library’; but there’s a more accurate term for taking what you don’t own: ‘stealing.’”
In an op-ed to the New York Times, Preston referenced Capitol Records v. Redigi, where it was decided that digitally copying music without permission for sale or loan is illegal, even if only one copy is made. Preston asserts that the court opinion’s established principles of digital copyright infringement should act as a precedent for all copyrighted works. He further compares the NEL’s unlimited copy lending model to book-piracy websites.
In 2023, after three years of litigation, the plaintiffs’ motion for summary judgment was granted, while the defendants’ motion for summary judgment was denied. Some of the major points that pushed the courts’ decision included all four publishers offering a “one-copy, one-user” model for e-book library usage, the NEL disregarding the IA’s previous use of “Controlled Digital Lending” and a one-to-one “owned to loaned ratio,” and a lack of transformative actions to the Works in Suit on behalf of the IA. In a 47-page opinion, United States district judge John G. Koeltl found that fair use was not a valid argument in Hachette v. Internet Archive.
In fact, Koeltl’s fundamental argument lied in the absence of transformation: “There is nothing transformative about IA’s copying and unauthorized lending of the Works in Suit. IA does not reproduce the Works in Suit to provide criticism, commentary, or information about them.”
Soon after the decision, Koeltl signed an order clarifying that the court’s injunction, directing the plaintiffs to notify IA of their commercially available books that will subsequently be taken down from IA’s lending program, should only cover books available electronically. A separate agreement was reached between IA and AAP in which AAP would discontinue further legal action if IA followed identical takedown procedures. IA maintained that the “injunction will result in a significant loss of access to valuable knowledge for the public.”
On March 31, 2023, AAP released an emphatic statement affirming the court’s decision: “[This litigation] was about honoring the importance of copyright law to the public interest and not taking for granted the rights, remedies, and exceptions that Congress 6 has legislated in its careful judgement over two and half centuries of attention to intellectual property.”
On September 4, 2024, the U.S. Court of Appeals for the Second Circuit upheld Koeltl’s ruling when IA attempted to get their decision appealed, despite various Friend of the Court Briefs filed. Three prominent examples include briefs from theAmerican Library Association and Association of Research Libraries, the Authors Alliance, and Wikipedia, Creative Commons, and Project Gutenberg.
To be frank, the result of the original case and the ensuing appeal could have been seen from a mile away. As artificial intelligence poses new challenges for the world of copyright, cases involving copyright infringement are closely watched. Since IA’s NEL distributed free, whole copies of copyrighted texts without any transformative actions, mirroring book-piracy sites, their fate was almost predetermined. Stanford University collected a wide array of fair use cases and compiled them on a web page, and some recurring important factors that are relevant to IA’s actions include the amount of content taken and marketability.
Wright v. Warner Books supports the infringing of copyrighted texts if a small amount of content is used. In this case, less than one percent of a set of unpublished letters were used, while IA distributed access to texts in their entirety.
Additionally, Harper & Row v. Nation Enterprises found that fair use does not apply if severe damage to the marketability of serialization rights occurs. If IA can post any copyrighted material online for free without any lending system, then there is no incentive for readers to buy the text, causing a decline in sales for authors and publishers. Many other cases can attest to the flaws in IA’s defense.
Making the case for fair use in digital settings is a developing topic, so every new circumstance is scrutinized to the highest degree. Knowledge of AI, digital footprints, and data privacy continue to change the game of copyright, which makes the results of IA’s case completely understandable and predictable.
