Is History Repeating Itself? The Metaphorical Burning of Alexandria 2.0

In Hachette v. Internet Archive, the United States Court of Appeals for the Second Circuit affirmed a District Court's decision against Internet Archive (“IA”). IA scanned physical books to loan digitized copies to its users through their Open Library Project, claiming fair use of the materials. The Court ruled in favor of the publishers’ claim for copyright infringement.

Attribution

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During their ambitious feat to become the modern Library of Alexandria, the Internet Archive has suffered a massive setback in their legal battle over their digital lending library. The Internet Archive ("IA") is a non-profit organization whose objective is to create an online platform where researchers, scholars, and the general public can have permanent access to different forms of media in a digital format. Brewster Kahle founded the IA in 1996 with the overall mission of "Universal Access to All Knowledge." Since then, the organization has initiated several projects. Most notably, the “Open Library” aims to construct "one web page for every book ever published." It is approximated that the Open Library has a historical collection of over 1.8 million scanned versions of texts.

The IA allows free access to digital copies of print books on Open Library where any user can "checkout" or "loan" a copy of the scanned material. The online platform had initially been loaning out digital books under a practice known as "Controlled Digital Lending" (“CDL), similar to the traditional lending standard by public libraries for print books. The IA soon "expand[ed] its lending capacity" in 2018, by allowing participating libraries to contribute their physical books to the program, making the Open Library a household of contributing libraries.

Despite increasing the amount of digitized copies available for loan, the IA completely abandoned traditional lending practices in March 2020. As an emergent response to the pandemic, the IA created the “National Emergency Library” (the “NEL”) which made their digitized copies available to an unlimited amount of users. The NEL pushed the boundaries of CDL during a period where the IA felt users needed it most. However, only a few months after its release, multiple publishers filed a copyright action against the IA’s NEL in June 2020. 

The publishers alleged that “the IA infringed their copyrights in 127 books,” because the publishers maintained an exclusive right to publish these specific body of works in different formats, including eBooks. In response, the IA asserted an affirmative defense of fair use under § 107 of the Copyright Act. Both parties filed motions for summary judgment. The District Court of the Southern District of New York  IA’s summary judgment on the basis that IA’s actions did not constitute fair use. The court also entered a permanent injunction against IA’s Open Library, preventing them from “distributing or reproducing Publishers’ copyrighted works.” The IA appealed the court’s decision.

On appeal, the Second Circuit evaluated the challenged practices. For IA’s reproduction of texts to be considered the fair use of a copyrighted work, a court will assess four factors: (1) purpose and character of the use, (2) nature of the copyrighted works, (3) amount and substantiality of the use, and (4) the effect of the use on the potential market for or value of the works.

Under the first factor of fair use, distribution of a copyrighted work is evaluated on the extent of how “transformative” the new work is. IA argued that their purpose was transformative because they “make lending more convenient and efficient” and their library “enables uses not possible with print books.” However, the court was not persuaded because IA’s practices did not “add something new, with a further purpose.” Hence, IA’s distribution of the material did not favor a fair use finding because it distributed the original work unmodified. 

In regards to the second factor, the nature of a work is assessed to decide whether it is one that requires more copyright protection over others. The court found that the copyrighted materials were “of the type that the copyright laws value and seek to protect” because they represent an author’s original ideas Thus, the court found this factor in favor of the Publishers.

On the third factor of amount and substantiality, IA’s distribution of scanned copies in their entirety was found not to be a fair use. Because IA copies are just that, full copies of original works, their purpose was found to ultimately “substitute Publishers’ books.”

In examining the fourth factor, the “most important element of fair use”, the court must decide whether the second work disrupts the copyrighted work’s market by offering a “competing substitute”, and the measure of harm IA’s practices present. The court sided in favor of the publishers because IA’s distribution practices appropriated the copyrighted materials “without payment of [the customary] licensing fee”, which they felt harmed the publishers’ market. Additionally, the court disregarded any public benefits of IA’s Open Library, stating that they were short-term and were “outweighed not only by harm to Publishers and authors but also the long-term detriments society may suffer.” 

On September 4, 2024, the Second Circuit upheld the previous ruling in favor of the publishers. The decision comes as a victory for publishers and authors alike, who viewed IA’s distribution as blatantly illegal, claiming that such practices “would turn copyright law on its head.” Such ruling also supports the rights of authors and publishers to be compensated for their work, and also incentivizes creatives to contribute their ideas to society.

Not surprisingly, some see the decision as disappointing, finding that it comes at a meaningful cost of reduction in access to knowledge. Taking advantage of a growing digital age, the IA's "Free Digital Library" spotlights the importance of archiving historical receipts in a time where book bans across the U.S. continue to increase, year after year.

The digital era’s rapid development has undoubtedly presented challenges to Copyright Law. However, it has also given opportunities to expand and make information more readily available to the public. In Authors Guild v. Google, Inc., the Second Circuit upheld a fair use finding for Goggle’s digitization of copyrighted materials through their library project. Here, Google’s scanning of materials and their search and snippet display functions were held to be transformative because Google’s service allowed users a snippet of the book, without creating a substitute. It’s overall function provided significant public benefits, advancing the creative arts while upholding respectful consideration for authors. 
Following the court’s decision, the IA removed over 500,000 books from their lending library. The IA remains committed to “defend[ing] the rights of libraries to own, lend and preserve books.”