On September 4, the United States Second Circuit Court of Appeals affirmed a March 2023 ruling that the Internet Archive’s (IA) program of scanning print books and distributing digital copies on a one print-book, one-ebook, one-user basis for free is not protected by fair use doctrine. The ruling was the result of a lawsuit filed by Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House in June 2020, in response to IA’s “National Emergency Library,” which had temporarily offered unlimited simultaneous access to IA’s collection of 1.4 million digitized books during the early days of the COVID-19 pandemic when many K–12, public, and academic libraries were closed.

The unlimited simultaneous use program was discontinued shortly after the lawsuit was filed, but Hachette v. Internet Archive continued, with the plaintiffs arguing that IA’s Open Library digitization and lending program violates copyright protections for their books. Last year, Judge John Koeltl of the United States District Court in the Southern District of New York agreed with the publishers, writing in his summary judgement: “At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book. But no case or legal principle supports that notion. Every authority points the other direction.”

In a unanimous ruling, the panel of appeals court judges affirmed Koeltl’s judgement, writing: “This appeal presents the following question: Is it ‘fair use’ for a nonprofit organization to scan copyright-protected print books in their entirety, and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no.”

Hachette v. Internet Archive was focused specifically on the copyrights of 127 books that the publishers also licensed digitally. But the ruling may set a discouraging precedent for the concept of controlled digital lending, which many academic and public libraries support, particularly as a way to preserve and circulate orphan works (for which the copyright holders are unknown) or books that are “still under copyright but unlikely to ever be offered digitally by commercial services,” according to controlleddigitallending.org.

This week, IA’s Director of Library Services Chris Freeland wrote in response to the ruling that “We are disappointed in today’s opinion about the Internet Archive’s digital lending of books that are available electronically elsewhere. We are reviewing the court’s opinion and will continue to defend the rights of libraries to own, lend, and preserve books.”