SEPTEMBER 5, 2024 – In a major victory for publishers and authors, the U.S. Court of Appeals for the Second Circuit has upheld a lower court decision finding the Internet Archive (IA) infringed the copyright in millions of books by scanning them without permission, posting the ebooks online, and then lending them to one user at a time as part of a "Free Digital Library."
Affirming a district court opinion that granted summary judgment to four leading book publishing companies, the appellate panel ruled unanimously and unequivocally that IA's unlicensed mass-digitization enterprise is not "fair use."
The Court rejected IA's "controlled digital lending" defense, which assumed that copyright law permits the owner of a physical book to distribute an electronic copy of that book online, so long as measures are taken to ensure that nobody reads the print and ebook copy at the same time. The Court held that this practice was not transformative, but merely re-packaged the original works.
The Court further rejected IA's argument that the publishers had demonstrated no "market harm," holding that it was "'self-evident' that if IA's use were to become widespread, it would adversely affect Publishers' markets for the Works in Suit." As the Court noted, the publishers have thriving ebook markets—including authorized library ebooks, which library users borrow millions of times per year for free.
The Court also explained that the public benefit would be served by siding with the publishers, not Internet Archive, because if "authors and creators knew that their original works could be copied and disseminated for free, there would be little motivation to produce new works" and this "dearth of creative activity would undoubtedly negatively impact the public."
Plaintiffs/Appellees in the case were Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House. The Association of American Publishers supported and coordinated the action.
A Davis Wright Tremaine litigation team led by Elizabeth McNamara and Linda Steinman, and including Jack Browning, Jesse Feitel, and Carl Mazurek, represented the publishers at the district court and on appeal.
Said McNamara: "The Second Circuit's decision is animated by common sense and the desire to foster creativity. The Court correctly rejected Internet Archive's project to turn copyright on its head by allowing an infringer to set the terms on which books are distributed to the public."
Said Steinman: "As the Court's clear-eyed opinion demonstrates, there is nothing transformative about Internet Archive's mass scale digitization and distribution of millions of books without consulting or compensating the authors and their publishers. This unequivocal decision will serve as a clear warning to future infringers."
The publishers were supported in the case by amici that included the Copyright Alliance, the Authors Guild, and the Recording Industry Association of America. Oppenheim + Zebrak also served as co-counsel to the publishers.
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