Industry & Advocacy News

Authors Guild Applauds Final Court Decision Affirming Internet Archive’s Book Scanning as Copyright Infringement

Copyright Open Library

September 4, 2024

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The Authors Guild is pleased with the Second Circuit’s decision today affirming the lower court’s ruling that the Internet Archive’s wholesale illegal copying of books is not transformative fair use. The outcome of the case and now the appeal was never in question for us: Internet Archive engaged in blatant copyright infringement and piracy. 

In June 2020, four major publishers—Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House—filed a lawsuit against the Internet Archive in the U.S. District Court for the Southern District of New York. The case centered around the Internet Archive’s practice of scanning physical books and lending out digital copies without obtaining permission from the publishers or compensating the authors. 

The Authors Guild supported the publishers and mobilized more than twenty author groups from around the world to submit a friend of the court brief explaining the many ways in which the Internet Archive’s copying and distribution of books harms authors. The case was decided in the publishers’ favor in March 2023. In a detailed 47-page opinion, the district court ruled that the Internet Archive’s practices were copyright infringement, noting that “IA merely creates derivative eBooks that, when lent to the public, compete with those authorized by the Publishers.”

Following this defeat, the Internet Archive appealed the district court’s decision to the Second Circuit Court of Appeals, which also rejected the Internet Archive’s ludicrous “fair use” defense for its mass copyright infringement. As before, the Guild rallied author and creator groups in submitting an amicus brief, urging the Second Circuit to uphold the lower court’s decision. Unsurprisingly, the appeals court also found that the Internet Archive’s practices were illegal. 

In its ruling, the Second Circuit Court of Appeals noted that “IA asks this Court to bless the large scale copying and distribution of copyrighted books without permission from or payment to the Publishers or authors. Such a holding would allow for widescale copying that deprives creators of compensation and diminishes the incentive to produce new works. This may be what IA and its amici prefer, but it is not an approach that the Copyright Act permits.” 

As we advised the Internet Archive years ago and have continued to argue, the Second Circuit found that the Internet Archive’s practice of copying and lending full books—without permission from the authors or publishers—creates an illegal market substitute that hurts authors’ incomes.  If Open Library’s practice of copying and distributing books without permission were fair use, anyone could call themselves a library, make pirated copies of books, and put them online with minimal controls. This would turn copyright law on its head. Merely copying and distributing books without permission in competition with the copyright owners is the core use that copyright protects against.

We congratulate the Association of American Publishers and authors everywhere for this victory.