Internet Archive loses appeal in case concerning 500,000 digital books

The Internet Archive has lost its appeal in a court case involving the distribution and lending of over half a million digital books.

The decision, which was issued Wednesday by the Second Circuit Court of Appeals, is the latest blow to the Internet Archive, which hosts millions of video, audio, and e-book files (in addition to hundreds of billions of snapshots of websites via Archive.org).

The decision concerns a case from 2020 in which four publishers (Hachette, Wiley, HarperCollins, and Penguin Random House) sued the Internet Archive over its Open Library system. The Open Library lends out digital copies of books that are "backed up" by a physical copy of the book residing in a library. The digital books are actually scans of these physical books and not true e-books in the context with which most consumers are familiar.

In other words, the Open Library purchases physical books, scans and digitizes them, and lends out these digital copies. Traditionally, libraries must purchase digital licenses to lend e-books.

The four publishers sued the Internet Archive and forced the removal of over 500,000 digital scans of books. At the time, the publishers claimed the Open Library's distribution method was akin to piracy. Last year, a federal judge ruled that the Internet Archive did not have the right to distribute books using the Open Library's digitization method. The Internet Archive appealed that ruling, but Wednesday's decision shot that appeal down.

The Internet Archive argued that digitizing physical books could be considered transformative and thus would be protected under "fair use" stipulations in copyright law in the United States. However, the court ruled that this method was not transformative enough to qualify as fair use, upholding the initial ruling. As such, the fate of the half million digital copies and, more broadly, the Internet Archive itself may be in jeopardy.

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