Hachette v. Internet Archive

The Internet Archive is a non-profit organization and legally a library; it is governed by copyright laws specific to libraries. It is based in San Francisco, California; the Archive maintains Open Library, a digital library index and lending system. As many of the works in the Internet Archive are under copyright, the Archive used a controlled digital lending (CDL) system, a practice that relies upon digital rights management (DRM) to prevent unauthorized downloading or copying of copyrighted works. Open Library can generate digitized material (ebooks) from print copy. The Open Library CDL system ensured that only one digital copy is in use for each print copy or otherwise authorized ebook copy available.

On March 24, 2020, following shutdowns caused by the COVID-19 pandemic, the Internet Archive opened the National Emergency Library, removing the waitlists used in Open Library and expanding access to these books for all readers. More than one user could borrow a book at the same time.{{cite news |last1=Johnson |first1=Sydney |title=Internet Archive’s Open Library Faces Uncertain Future After Court Sides With Publishers |url=https://www.kqed.org/news/12003819/internet-archives-open-library-faces-uncertain-future-after-court-sides-with-publishers |access-date=23 September 2024 |work=www.kqed.org |date=10 September 2024 |language=en}}{{cite news |last1=Lovine |first1=Anna |title=Internet Archive loses first ruling in copyright lawsuit |url=https://mashable.com/article/internet-archive-lawsuit |access-date=23 September 2024 |work=Mashable |date=25 March 2023 |language=en}} Two months later, on June 1, the National Emergency Library (NEL) was met with a lawsuit from four book publishers. Two weeks after that, on June 16, the Internet Archive closed the NEL,{{Cite web |last=Brooke |first=Rachel |date=March 20, 2023 |title=Judge Hears Oral Arguments in Hachette Book Group v. Internet Archive |url=https://www.authorsalliance.org/2023/03/20/judge-hears-oral-arguments-in-hachette-book-group-v-internet-archive/ |archive-url=https://web.archive.org/web/20230323073020/https://www.authorsalliance.org/2023/03/20/judge-hears-oral-arguments-in-hachette-book-group-v-internet-archive/ |archive-date=March 23, 2023 |access-date=March 25, 2023 |website=Authors Alliance |language=en-US}} and the prior Open Library CDL system resumed after the 12 weeks of NEL usage.

On June 1, 2020, Hachette Book Group and other publishers, including Penguin Random House, HarperCollins, and Wiley, filed a lawsuit against the Internet Archive for the National Emergency Library.{{Cite web |last=Harris |first=Elizabeth |date=June 1, 2020 |title=Publishers Sue Internet Archive Over Free E-Books |url=https://www.nytimes.com/2020/06/01/books/internet-archive-emergency-library-coronavirus.html |access-date=March 24, 2023 |website=The New York Times |archive-date=June 12, 2020 |archive-url=https://web.archive.org/web/20200612122012/https://www.nytimes.com/2020/06/01/books/internet-archive-emergency-library-coronavirus.html |url-status=live }}{{Cite web |date=October 9, 2020 |title=Hachette v. Internet Archive |url=https://www.eff.org/cases/hachette-v-internet-archive |archive-url=https://web.archive.org/web/20230325094238/https://www.eff.org/cases/hachette-v-internet-archive |archive-date=March 25, 2023 |access-date=March 25, 2023 |website=Electronic Frontier Foundation |language=en}} The plaintiffs argued that the practice of CDL was illegal and not protected by the doctrine of fair use.{{Cite web |last=Robertson |first=Adi |date=March 20, 2023 |title=The Internet Archive is defending its digital library in court today |url=https://www.theverge.com/2023/3/20/23641457/internet-archive-hachette-lawsuit-court-copyright-fair-use |archive-url=https://web.archive.org/web/20230325001529/https://www.theverge.com/2023/3/20/23641457/internet-archive-hachette-lawsuit-court-copyright-fair-use |archive-date=March 25, 2023 |access-date=March 25, 2023 |website=The Verge |language=en-US}} Furthermore, they argued that the Internet Archive was not abiding by CDL, as it had acknowledged that its partner libraries were not always withdrawing their physical copies from their shelves.{{cite web|url=https://www.publishersweekly.com/pw/by-topic/industry-news/libraries/article/90246-publishers-internet-archive-trade-reply-briefs-in-book-scanning-case.html|title=NEXT JOB Publishers, Internet Archive Trade Reply Briefs in Book Scanning Case|first=Andrew|last=Albanese|date=6 September 2022|access-date=12 November 2023|publisher=Publishers Weekly}}

By June 2022, both parties to the case requested summary judgment for the case, each favoring their respective sides, which Judge John G. Koeltl approved of a summary judgment hearing to take place later in 2022.{{cite web |last=Albanese |first=Andrew |date=June 13, 2022 |title=Internet Archive, Publishers to Seek Summary Judgment in Book Scanning Lawsuit |url=https://www.publishersweekly.com/pw/by-topic/industry-news/libraries/article/89591-internet-archive-publishers-to-seek-summary-judgment-in-book-scanning-lawsuit.html |url-status=live |archive-url=https://web.archive.org/web/20220614200027/https://www.publishersweekly.com/pw/by-topic/industry-news/libraries/article/89591-internet-archive-publishers-to-seek-summary-judgment-in-book-scanning-lawsuit.html |archive-date=June 14, 2022 |access-date=June 15, 2022 |work=Publishers Weekly}} No summary judgment was issued, and instead a first hearing was held on March 20, 2023.{{cite news |last1=Brittain |first1=Blake |date=March 20, 2023 |title=Internet Archive faces skeptical judge in publishers' copyright lawsuit |url=https://www.reuters.com/legal/litigation/internet-archive-faces-skeptical-judge-publishers-copyright-lawsuit-2023-03-20/ |url-status=live |archive-url=https://web.archive.org/web/20230325103412/https://www.reuters.com/legal/litigation/internet-archive-faces-skeptical-judge-publishers-copyright-lawsuit-2023-03-20/ |archive-date=March 25, 2023 |access-date=March 20, 2023 |newspaper=Reuters}} Over the course of the hearing, Koeltl appeared unmoved by the IA's fair use claims and unconvinced that the publishers' market for library e-books was not impacted by their practice.{{Cite web |last=Albanese |first=Andrew |date=2023-03-20 |title=At Hearing, Judge Appears Skeptical of Internet Archive's Scanning and Lending Program |url=https://www.publishersweekly.com/pw/by-topic/industry-news/libraries/article/91798-at-hearing-judge-appears-skeptical-of-internet-archive-s-scanning-and-lending-program.html |url-status=live |archive-url=https://web.archive.org/web/20230323013029/https://www.publishersweekly.com/pw/by-topic/industry-news/libraries/article/91798-at-hearing-judge-appears-skeptical-of-internet-archive-s-scanning-and-lending-program.html |archive-date=March 23, 2023 |access-date=March 23, 2023 |work=Publishers Weekly}}

The 127 publishers' books in the suit are also available as ebooks from the publishers. The Internet Archive said afterwards it would appeal this ruling, but otherwise would continue other digital book services which have been previously cleared under case law, such as books for reading-impaired users.{{cite news |last1=Hernandez |first1=Joe |date=March 26, 2023 |title=A judge sided with publishers in a lawsuit over the Internet Archive's online library |url=https://www.npr.org/2023/03/26/1166101459/internet-archive-lawsuit-books-library-publishers |url-status=live |archive-url=https://web.archive.org/web/20230327010123/https://www.npr.org/2023/03/26/1166101459/internet-archive-lawsuit-books-library-publishers |archive-date=March 27, 2023 |access-date=March 27, 2023 |publisher=NPR}}{{Cite web |last=Brittain |first=Blake |date=March 20, 2023 |title=Internet Archive faces skeptical judge in publishers' copyright lawsuit |url=https://www.reuters.com/legal/litigation/internet-archive-faces-skeptical-judge-publishers-copyright-lawsuit-2023-03-20/ |archive-url=https://web.archive.org/web/20230325103412/https://www.reuters.com/legal/litigation/internet-archive-faces-skeptical-judge-publishers-copyright-lawsuit-2023-03-20/ |archive-date=March 25, 2023 |access-date=March 25, 2023 |publisher=Reuters |language=en}}

Senator Thom Tillis of North Carolina, chairman of the intellectual property subcommittee on the Senate Judiciary Committee, said in a letter to the Internet Archive that he was "concerned that the Internet Archive thinks that it—not Congress—gets to determine the scope of copyright law".{{cite news |last1=Harris |first1=Elizabeth |date=11 June 2020 |title=Internet Archive Will End Its Program for Free E-Books |url=https://www.nytimes.com/2020/06/11/books/internet-archive-national-emergency-library-coronavirus.html |url-status=live |archive-url=https://web.archive.org/web/20200615094026/https://www.nytimes.com/2020/06/11/books/internet-archive-national-emergency-library-coronavirus.html |archive-date=June 15, 2020 |access-date=15 June 2020 |publisher=NY Times}}

As part of its response to the publishers' lawsuit, in late 2020 the Archive launched a campaign called Empowering Libraries (hashtag #EmpoweringLibraries) that portrayed the lawsuit as a threat to all libraries.{{cite magazine |last=Ojala |first=Marydee |date=January–February 2021 |title=Controlled digital lending: legal lending or piracy? |url=https://www.infotoday.com/OnlineSearcher/Articles/Features/Controlled-Digital-Lending-Legal-Lending-or-Piracy-144995.shtml |url-status=live |archive-url=https://web.archive.org/web/20210218231803/https://www.infotoday.com/OnlineSearcher/Articles/Features/Controlled-Digital-Lending-Legal-Lending-or-Piracy-144995.shtml |archive-date=February 18, 2021 |access-date=February 18, 2021 |magazine=Online Searcher |volume=45 |number=1}}

In a 2021 preprint article, Argyri Panezi argued that the case "presents two important, but separate questions related to the electronic access to library works; first, it raises questions around the legal practice of digital lending, and second, it asks whether emergency use of copyrighted material might be fair use" and argued that libraries have a public service role to enable "future generations to keep having equal access—or opportunities to access—a plurality of original sources".{{cite journal |last1=Panezi |first1=Argyri |date=28 Mar 2021 |title=A public service role for digital libraries: the unequal battle against (online) misinformation through copyright law reform and the emergency electronic access to library material |url=https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3813320 |url-status=live |journal=Cornell Journal of Law and Public Policy |ssrn=3813320 |archive-url=https://web.archive.org/web/20210730141426/https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3813320 |archive-date=July 30, 2021 |access-date=30 July 2021}} Article reportedly forthcoming.

Shortly before oral arguments, the Internet Archive held a press conference with comments from several people who implied that the issues in this case were much broader than the 127 books specifically named in the suit.{{cite Q|Q117825695}} All presenters agreed that book publishers need to make money to pay their expenses including authors. The question is whether the National Emergency Library (NEL) actually harmed the publishers.

File:A Real Page-Turner.jpg

Lila Bailey, Senior Policy Counsel for the Internet Archive,{{cite Q|Q117745845}} noted that:

{{blockquote|In the past, publishers stood against microfilm and photocopiers, crying harm. They said they would be harmed by interlibrary loan. They lobbied for decades against libraries being allowed to provide access for the blind and print disabled. They were wrong. It took years, but eventually, the law affirmed each of these things, and the public benefitted. With this lawsuit, publishers have repeated those same claims of massive harm from controlled digital lending. ... When asked under oath, their own executives admitted this. ... [They even] instructed their own 950 dollar per hour expert not to even try to measure economic harm. ... On the other hand, when we invited economists from Northeastern University and the University of Copenhagen to look at the sales and library lending data produced in this case, they came to a singular conclusion: The Internet Archive's digital lending had no measurable effect on the market whatsoever.{{cite Q|Q117745831}}}}

Bailey's conclusion was supported by other speakers.{{cite Q|Q117757229}}{{cite Q|Q117756653}}

Harvard Law School Professor Lawrence Lessig said that book publishers need to make a profit to serve the public, but the material available to the public should not be limited to what commercial enterprises find profitable. Netflix, for example, offers subscribers access to thousands of movies and television shows but routinely stops offering content for which the demand is too low. That doesn't happen with libraries. Without controlled digital lending, out-of-print books become essentially unavailable to the vast majority of humanity. "We need access to our past, not just the part of our past that is economically or commercially viable."{{cite Q|Q117825676}}

=== Expert reports ===

An expert report filed with the court by Northeastern Econ Prof. Imke Reimers also reported that "sales in the first five years after an edition's publication account for up to 90% of lifetime sales."{{cite Q|Q117749346}}

On the other side, University of Chicago computer science professor Ian Foster reported that the Internet Archive's actual CDL practices sometimes violated their claims, lending out more copies than they physically had.{{cite Q|Q117749404|page=122}}

Judge John G. Koeltl ruled on March 24, 2023, granting the publishers' request.{{Cite web |title=Opinion |url=https://www.eff.org/files/2023/03/29/188_opinion.pdf |url-status=live |archive-url=https://web.archive.org/web/20230330131741if_/https://www.eff.org/files/2023/03/29/188_opinion.pdf |archive-date=March 30, 2023}} He held that the Internet Archive's scanning and lending of complete copies constituted copyright infringement and that the Internet Archive's fair use defense failed all four factors of the "fair use test". He rejected the Archive's argument that their use was "transformative" in the sense of copyright law.{{cite web|url=https://www.publishersweekly.com/pw/by-topic/industry-news/libraries/article/91862-in-a-swift-decision-judge-eviscerates-internet-archive-s-scanning-and-lending-program.html|title=In a Swift Decision, Judge Eviscerates Internet Archive's Scanning and Lending Program|date=25 March 2023|last=Albanese|first=Andrew|publisher=Publishers Weekly|access-date=12 November 2023}} He further stated that "Even full enforcement of a one-to-one owned-to-loaned ratio, however, would not excuse IA's reproduction of the Works in Suit".

Internet Archive founder Brewster Kahle declared their intention to appeal the ruling.{{cite web|url=https://www.commondreams.org/news/internet-archive-publishers-copyright-libraries|title=Internet Archive to Appeal 'Chilling' Federal Ruling Against Digital Books|last1=Corbett|first1=Jessica|date=March 25, 2023|website=Common Dreams}}

While Judge Koeltl issued a summary judgment in favor of the plaintiffs and against the defendant, he did not assess damages. Instead, he directed the parties to brief the court on how they thought the case should be resolved in a way that comports with the judge's decision. The deadline for this was extended several times;[https://www.courtlistener.com/docket/17211300/hachette-book-group-inc-v-internet-archive/?page=2#entry-213 Orders 191-213] between April and July 2023. the final extension was granted on July 28, extending the deadline to August 11, 2023, with Judge Keoltl writing, "No further extensions."{{cite Q|Q121133396}}

On August 11, 2023, the parties reached a negotiated judgment. The agreement prescribes a permanent injunction preventing Internet Archive from loaning the plaintiffs' books in full through CDL, except those for which no e-book is currently available for sale from the publisher,{{cite web|url=https://publicknowledge.org/some-unexpected-sanity-in-the-hachette-v-internet-archive-lawsuit/|title=Some Unexpected Sanity in the Hachette v. Internet Archive Lawsuit|last=Rose|first=Meredith Filak|date=21 August 2023|access-date=12 November 2023|publisher=Public Knowledge}} as well as an undisclosed payment to the plaintiffs.{{cite web |last1=Freeland |first1=Chris |title=What the Hachette v. Internet Archive Decision Means for Our Library |url=https://blog.archive.org/2023/08/17/what-the-hachette-v-internet-archive-decision-means-for-our-library/ |website=Internet Archive Blogs |publisher=Internet Archive |access-date=4 January 2024 |date=17 August 2023}}{{cite web |title=Publishers and Internet Archive Submit Negotiated Judgment with Permanent Injunction to District Court in Hachette Book Group, et al, v. Internet Archive |url=https://publishers.org/news/publishers-and-internet-archive-submit-negotiated-judgment-with-permanent-injunction-to-district-court-in-hachette-book-group-et-al-v-internet-archive/ |website=publishers.org |date=August 11, 2023 |publisher=Association of American Publishers |access-date=15 August 2023}} The agreement also preserves the right for the Internet Archive to appeal the previous ruling. As a result of the lawsuit, more than 500,000 books were made unavailable from loaning in full through CDL. The Internet Archive appealed to restore full CDL access to the affected books.{{cite web|url=https://help.archive.org/help/why-are-so-many-books-listed-as-borrow-unavailable-at-the-internet-archive/|title=Why are so many books listed as "Borrow Unavailable" at the Internet Archive|date=March 17, 2024|work=Internet Archive Help Page|access-date=June 13, 2024}}

On September 11, 2023, the Internet Archive filed a notice which appealed the ruling to the United States Court of Appeals for the Second Circuit.{{cite web |last=Robertson |first=Adi |title=Internet Archive appeals loss in library ebook lawsuit |website=The Verge |date=September 11, 2023 |url=https://www.theverge.com/2023/9/11/23868870/internet-archive-hachette-open-library-copyright-lawsuit-appeal |access-date=September 13, 2023}} On December 15, 2023, the Internet Archive filed its opening brief in its appeal.{{cite news |last=Van der Sar |first=Ernesto |title=Internet Archive: Digital Lending is Fair Use, Not Copyright Infringement |url=https://torrentfreak.com/internet-archive-digital-lending-is-fair-use-not-copyright-infringement-231218/ |date=December 18, 2023 |work=TorrentFreak |url-status=live |archive-url=https://archive.today/20231218205431/https://torrentfreak.com/internet-archive-digital-lending-is-fair-use-not-copyright-infringement-231218/ |archive-date=December 18, 2023 |access-date=December 19, 2023 }}{{Cite web |date=15 December 2023 |title=Brief for Defendant-Appellant Internet Archive |work=The Internet Archive |url=https://torrentfreak.com/images/ia-appeal.pdf |via=TorrentFreak}} Shortly afterwards, several other organizations filed friend of the court briefs.{{cite web |last1=Bailey |first1=Lila |title=Friend of the Court Briefs Filed in Internet Archive's Appeal |url=https://blog.archive.org/2023/12/29/friend-of-the-court-briefs-filed-in-internet-archives-appeal/ |website=The Internet Archive |access-date=4 January 2024 |date=29 December 2023}}

The oral argument phase of the appeal occurred on June 28, 2024.{{Cite AV media |title=Hachette Book Group, Inc. v. Internet Archive Appeal Oral Argument Second Circuit |work=United States Court of Appeals for the Second Circuit |url=https://archive.org/details/20240628-appeal-oral-argument-second-circuit-88min |date=June 28, 2024 |medium=Audio |via=Internet Archive}}

On September 4, 2024, the Second Circuit Court of Appeals affirmed the lower court rulings. The court stated "On the one hand, eBook licensing fees may impose a burden on libraries and reduce access to creative work. On the other hand, authors have a right to be compensated in connection with the copying and distribution of their original creations. Congress balanced these 'competing claims upon the public interest' in the Copyright Act. We must uphold that balance here."{{Cite web |last=Roth |first=Emma |date=2024-09-04 |title=The Internet Archive just lost its appeal over ebook lending |url=https://www.theverge.com/2024/9/4/24235958/internet-archive-loses-appeal-ebook-lending |access-date=2024-12-07 |website=The Verge |language=en}}https://storage.courtlistener.com/recap/gov.uscourts.ca2.60988/gov.uscourts.ca2.60988.306.1.pdf

The Internet Archive did not petition to have the case reviewed by the Supreme Court of the United States by the Second Circuit's deadline in December 2024, leaving the court injunction in place.{{cite web|last=Italie|first=Hillel|url=https://apnews.com/article/internet-archive-free-ebooks-morrison-salinger-e26a88496202b396015c555dca429b9b|title=Online library drops its legal battle to provide free e-books without publishers' permission|website=Associated Press|date=December 6, 2024}}

The Association of American Publishers released a press statement that said, "In celebrating the opinion, we also thank the thousands of public libraries across the country that serve their communities {{sic|everyday}} through lawful eBook licenses. We hope the opinion will prove educational to the defendant and anyone else who finds public laws inconvenient to their own interests."{{cite web|url=https://publishers.org/news/publishers-prevail-in-summary-judgement-against-internet-archive-for-copyright-infringement/|title=Publishers Prevail in Summary Judgement Against Internet Archive for Copyright Infringement|date=24 March 2023|publisher=Association of American Publishers|access-date=6 November 2023}} The AAP has been critical of the Internet Archive for suggesting that libraries engage in the same practices that they do, arguing that only 13 public libraries in the US had cooperated with the Open Library.{{cite web|url=https://publishers.org/wp-content/uploads/2023/04/Pallante-Reflections-on-Hachette-v-IA-March-31-2023.pdf|title=Reflections from the Association of American Publishers on Hachette Book Group v. Internet Archive: An Affirmation of Publishing|last=Pallante|first=Maria A.|publisher=Association of American Publishers|date=31 March 2023|access-date=6 November 2023}}

• Universal Music Group v. Internet Archive
• Authors Guild, Inc. v. Google, Inc.
• Authors Guild, Inc. v. HathiTrust

{{reflist|37.5em}}

• [https://www.documentcloud.org/documents/23723923-hachette-v-internet-archive-ruling Judge Koeltl's ruling on cross-motions for summary judgment]
• [https://www.eff.org/cases/hachette-v-internet-archive Hachette v. Internet Archive] at the Electronic Frontier Foundation
• [https://www.courtlistener.com/docket/17211300/hachette-book-group-inc-v-internet-archive/ Court Listener]

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