Major book publishers defeat Internet Archive call for digital scanning by Reuters

By Jonathan Stempel

NEW YORK (Reuters) – A U.S. appeals court has sided with four major book publishers that have accused the nonprofit Internet Archive of illegally scanning copyrighted works and lending them to the public online for free and without permission.

The 2nd US Circuit Court of Appeals in Manhattan agreed with Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House that “large-scale” copying of the archive and distribution of entire books did not amount to “fair use “.

The publishers accused the nonprofit of infringing the copyrights of 127 books by authors including Malcolm Gladwell, CS Lewis, Toni Morrison, JD Salinger and Elie Wiesel by making the books available for free through its Free Digital Library.

The archive, which hosts more than 3.2 million copies of copyrighted books on its website, claimed the library was transformative because it made borrowing more convenient and served the public interest by promoting “access to knowledge “.

But in a 59-page decision Wednesday, Circuit Judge Beth Robinson said the archive replaced the original books rather than turning them into “something new.”

She said making books available to publishers for free hurt publishers and would “undoubtedly have a negative impact on the public”, removing incentives for many consumers and libraries to pay for books and for many authors to produce new work .

Robinson quoted Sandra Cisneros, who wrote the best-selling novel “The House on Mango Street,” as saying that finding her works available for free online “was like going to a pawn shop and have seen the stolen goods for sale”.

The Internet Archive appealed a March 2023 ruling by Manhattan District Judge John Koeltl.

“We are reviewing the court’s opinion and will continue to defend the rights of libraries to own, borrow and preserve books,” said Chris Freeland, the archive’s director of library services.

Maria Pallante, president of the Association of American Publishers, said the decision “reinforced the indispensable role of authors and publishers in society” and was a major victory for authors, publishers and readers.

The Internet Archive limits borrowing from its Free Digital Library to a single “checkout” for each physical book in storage.

It temporarily expanded lending in 2020, allowing registrations of up to 10,000 users at a time, when the COVID-19 pandemic caused mass closures of schools, libraries and bookstores.

The extension ended on June 16, 2020, two weeks after the publishers sued.

The case is Hachette Book Group Inc et al v. Internet Archive, 2nd US Circuit Court of Appeals, no. 23-1260.