Internet Archive Loses Appeal in Major Copyright Case

An appeals court has upheld an earlier finding that the San Francisco-based Internet Archive violated copyright law by scanning and sharing digital books without the publishers’ permission.

Four major publishers — Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House — had sued the Archive in 2020, alleging that it had illegally offered free copies of more than 100 books, including fiction by Toni Morrison and J.D. Salinger. The Archive had countered that it was protected by fair use law.

In 2023, a judge for the U.S. District Court in Manhattan decided in the publishers’ favor and granted them a permanent injunction. On Wednesday, the U.S. Court of Appeals for the Second Circuit concurred, asking the question: Was the Internet Archive’s lending program, a “National Emergency Library” launched early in the pandemic, an example of fair use?

“Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no,” the appeals court ruled.

In a statement on Wednesday, the president and CEO of the Association of American Publishers, Maria Pallante, called the decision a victory for the publishing community.

“Today’s appellate decision upholds the rights of authors and publishers to license and be compensated for their books and other creative works and reminds us in no uncertain terms that infringement is both costly and antithetical to the public interest,” Pallante said.

The Archive’s director of library services, Chris Freeland, called the ruling a disappointment.

“We are reviewing the court’s opinion and will continue to defend the rights of libraries to own, lend, and preserve books,” he said in a statement.