Plaintiffs: The plaintiffs of the case are Hachette Book Group; HarperCollins Publishers, LLC; John Wiley & Sons., Inc.; and Penguin Random House, LLC, four leading book publishers in the U.S. that own exclusive rights to publish books in print and digital formats.

Defendant: The defendant is Internet Archive, a nonprofit organization dedicated to providing “universal access to all knowledge” by offering free online access to text, audio, moving images, software, and other cultural artifacts. It was founded in 1996 to archive the internet using its Wayback Machine.

The Case

The publishers allege that Internet Archive infringed their copyrights in 127 books through its National Emergency Library during the early months of the COVID-19 pandemic in which they lent books to users in digital format without the publishers’ permission. Internet Archive contends that it is not liable for copyright infringement because it made fair use of the works concerned in the suit. Plaintiffs sought injunctive relief and damages for copyright infringement. The complex legal question in this case involves determining whether Internet Archive’s use is considered fair use. Summary judgment was granted to the publishers and denied for Internet Archive on March 24, 2023; both parties have 14 days following this ruling to submit their proposals for judgment.

In a blog post on Internet Archive, its founder, Brewster Kahle, states in response to this decision, “Libraries are more than the customer service departments for corporate database products. 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.”

Maria A. Pallante, president and CEO of the Association of American Publishers (AAP), states on AAP’s website, “In rejecting arguments that would have pushed fair use to illogical markers, the Court has underscored the importance of authors, publishers, and creative markets in a global society.”

Fair Use

The four factors that judges and courts consider when making a determination of whether a particular use is a fair use are:

1. The purpose and character of your use
2. The nature of the copyrighted work
3. The amount and substantiality of the portion taken
4. The effect of the use on the potential market

The court found that Internet Archive’s scanning of the books into digital copies did not have a transformative purpose. Internet Archive’s argument is that it did by providing broader access to materials that might otherwise be difficult or impossible to obtain. A transformative use, notes the court’s opinion, “adds something new with a further purpose or different character altering the first with new expression, meaning, or message, rather than merely superseding the original work.”

The court determined that the character of Internet Archive’s use, although nonprofit, is commercial. Internet Archive uses its website to receive sums of money each time a patron buys a book from Better World Books, whose site is linked, solicits donations, attracts new members, and bolsters its standing in the library community. Per court documents, “every single page of the Archive is monetized.”

The nature of the works was not determined to be of fair use; factual informative works are more likely to fall under fair use, whereas a large number of the works in question were fiction. The court also found that works in their entirety were scanned and lent to users by Internet Archive. Internet Archive relies on the controlled digital lending (CDL) model—its use of only one digital copy of a book per physical copy lent out at a time—to define the amount used as small. The effects on the market were found to have been harmful because Internet Archive offered substitutes—free alternatives to purchasing or licensing digital copies of its books—to public users.

The Precedent

There are several cases that offer insight into how the facts in this case might have been analyzed by the court, although the analysis of the decisions is likely to give you whiplash. In 2005’s MGM v. Grokster, the Supreme Court unanimously held that peer-to-peer file-sharing services like Napster could be sued for copyright infringement. In Authors Guild v. HathiTrust, decided in 2012, the court determined that HathiTrust’s use was fair use, based on the purpose factor determination. HathiTrust digitized millions of books and made them available to users to search for research and educational purposes. The full texts of the books were not available to the users in this case, only particular terms identified in the works per the users’ search.

In the Capitol Records v. ReDigi case, decided in 2013, a federal judge ruled that ReDigi’s practices of allowing users to buy and sell used MP3 files were illegal because the First Sale doctrine only applies to physical copies, not digital files. The First Sale doctrine allows the user who buys a copyrighted work the right to sell, display, or dispose of that particular copy as they wish, with certain restrictions.

Authors Guild v. Google, decided in 2015, focused on Google curating “snippets” of books, digitizing those snippets, and making them available for search purposes in its Books feature. Because the amount of each work that was copied, digitized, and made available was small, Google’s use was determined to be fair use. In AAP v. Frosh, decided in 2022, the court held that forcing publishers to transact with libraries in ebook licenses whose terms were determined by the state would strip them of their rights under copyright law to decide whether, when, and to whom to distribute their copyrighted works. This court suggested in its ruling that forcing these transactions would not provide users with more access over time and that it is through the protection of copyright law that books and creative works may be generated and distributed at all.

The Concerns

The Internet Archive case brings to the forefront philosophical and practical questions that no longer have the luxury of remaining unanswered. Does the outcome threaten the historical concept of libraries in this evolving digital age? Are libraries going to be able to have, obtain, or own content to provide to patrons? Does this case simply maintain the application of current copyright law to prevent the destruction of markets for—and to preserve the incentive to produce—creative works? Will the precedent from this case freeze independent archival processes by preventing libraries from owning digital books altogether or by threatening the operation of the Wayback Machine, a vital archival resource? What will happen with current CDL practices? If CDL guidelines are followed, would the usage be considered fair use? Does the principle of fair use extend to the creation of digital copies of copyrighted works in any form, and, if so, in what instances? Would the possible decrease in financial incentive to create result in an inequitable or less diverse collection of creative works?

The singular answer to all of these questions (and all others waiting to be answered in the next case) is painfully familiar to law students because it echoes the standard response of every law professor since the beginning of time: “It depends.” In cases like this, undetermined determinations demand to be made about novel questions arising from the intersection of our current law and technology. The importance and relevance of the details are being defined in real time for issues arising from the digital world, so the devilish details, the legal infractions, are having to be transcribed.

The Conclusion

This case does not give broad, definitive determinations about the future of fair use and the digital world. There were no disputes as to material facts that met the test for copyright infringement, and the claim for an excuse to this infringement by the doctrine of fair use was rejected. According to Sony v. University City Studios, “Sound policy, as well as history, supports [the court’s] consistent deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.” The fact is that the legislative and judicial branches, through their work, will make the determination about whether our copyright laws as written are able to both manage the issues that arise within this digital age and remain true to their original intent.

On a philosophical level, this reflects the dissonance created when having to choose between the fundamental principles of ownership, governance, and commercialism and the fundamental right that forms the foundation of a free and democratic society that makes possible informed decisions, participation in civic life, and holding our government and other institutions responsible. This case, along with the collection of related cases that precede it, boils down to balancing between the rights of copyright holders and the public interest in access to information and cultural works. Like many others, I am on both sides; it really just depends.