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Internet Archive v. Hachette – An E-book Distribution Precedent

When corporate capitalism and the preservation of knowledge clash, who comes out on top? Corporate capitalism would be a term used by the Internet Archive to describe the publishers who challenged their practice of digital lending in 2020 during the Archive’s National Emergency Library. During the period of the National Emergency Library’s existence, the Internet Archive suspended a policy in which they only allowed one digital copy of a book to be borrowed at a time. The suspension of that policy allowed many to borrow a digital copy of a book. However, the case also challenges the Archive’s general policy of scanning copyrighted print books and lending them to library-goers without permission or compensation.  

On March 25, 2023, the U.S. District Court of the Southern District of New York ruled on the side of the four publishing companies that sued the Internet Archive: Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House. The Internet Archive announced the same day that they had plans to appeal the ruling. They made the statement that their practices are beneficial to readers, authors, and, of course, libraries. However, the Authors Guild expressed gratitude to the court for its ruling. The opinion of the Internet Archive is that their practices are aligned with the historical role of libraries: to own, lend, and preserve books.” The Internet Archive announced on September 11, 2023, that it appealed the ruling of the U.S. District Court that made the ruling in March.  

Perhaps the crux of the issue is the scanning and lending of copyrighted works without permission or compensation. The Internet Archive argued that its infringement of copyright is excused through the fair use doctrine. However, U.S. District Court Judge John G. Koeltl stated, “IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book, but no case or legal principle supports that notion. Every authority points the other direction.” The fair use doctrine stems from the idea from the American Constitution that allows violations of intellectual ownership in cases that progress science or the arts. The court decided that the Internet Archive’s actions were not permitted under any aspect of the fair use doctrine. The court’s opinion and order can be accessed here.  

Not all are in agreement that the court made the correct decision in the case. The Authors Guild did make the statement praising the court’s wisdom in their ruling. However, others align themselves with the Internet Archive. In September of 2022, over 300 authors signed an open letter in which they asked the publishers to drop the lawsuit against the Internet Archive. In fact, Dan Gillmor, co-founder of News Co/Lab stated, “Big Publishing would outlaw public libraries if it could — or at least make it impossible for libraries to buy and lend books as they have traditionally done, to enormous public benefit — and its campaign against the Internet Archive is a step toward that goal.” Clearly, strong opinions rage on both sides of this case.  

With the Hachette v. Internet Archive case in mind, the question becomes what are the consequences of the case on libraries and publishers? When considering the effect on libraries from the case, the effects are primarily on the Internet Archive itself and those libraries in partnership with it. The Internet Archive was allowed to continue scanning and lending copies of works within the public domain, those not under copyright restrictions any longer. However, they were required to end the mass scanning and lending of digital copies of print books under copyright restriction. Libraries who followed the lead of the Internet Archive would have to follow suit. Clear lines have been drawn and precedents set with regard to what libraries are allowed to do. The traditional practices of libraries nationwide should not be affected by the court’s decision. However, if other libraries or companies similar to the Internet Archive were to pop up, they would need to follow the precedent set by the court’s decision.

How did the results of the case affect publishers? Well, the rights of book publishing companies have been defended and reinforced due to the court’s decision. Book publishers retain the rights guaranteed to them under copyright law. It is the opinion of many, and the court specifically, that the Internet Archive was in clear violation of copyright law. Some view the win for the publishers as a loss, as is the case with Gillmor, for libraries, authors, and readers as the win benefits four publishing companies that earn a large amount of money annually from their published works. No matter the view taken in consideration of the court case, the results favored the publishers, protecting their rights.