5 Takeaways from the Internet Archive Ruling

Yesterday, a group of publishers secured a significant victory against the Internet Archive (IA). The Second Circuit Court of Appeals upheld a lower court decision granting summary judgment in their favor.

The case’s story begins in 2011, when the Internet Archive started its digital library service. The process was straightforward. The IA would obtain physical copies of books, either through donations, third parties or partner libraries, and scan them for digital “lending” online.

For most of the service’s history, it used what the IA calls “controlled digital lending.” The IA restricted access to the books based on the number of legally owned copies. This meant that if the IA only owned two copies of a book, only two users could check it out simultaneously.

However, in early 2020, the IA lifted those restrictions in response to pandemic closures. The IA referred to this as the National Emergency Library (NEL). That, in turn, prompted publishers to file a lawsuit against the IA, targeting both the National Emergency Library and digital lending as a practice.

The IA argued its practices were fair use and non-infringing. However, the district court disagreed and issued a summary judgment in favor of the publisher. The IA appealed, and now the Second Circuit has affirmed the lower court’s decision.

It is unclear if the IA will attempt to appeal to the Supreme Court.

The 64-page decision is well worth reading. However, for those who don’t want to read the whole thing, there are five key takeaways you should know about.

1: Unauthorized Controlled Digital Lending is Dead

The Internet Archive argued that their practice of scanning books and making digital copies available for “lending” was a fair use. As such, most of the decision focuses on those fair use arguments.

To that end, the Appeals Court rules that making a digital copy of a book and offering it to users online is a copyright infringement. So, while the NEL is an infringement, the same is true of the IA’s standard practice of controlled digital lending.

In short, the court found that creating a digital version of a physical book and offering it whole to users was derivative, not transformative. This is because the book’s core remains unchanged. The shift in formats does not offer commentary, criticism or otherwise change the meaning of the work.

However, the court carefully separated the Internet Archive’s practice from Google Book Search. The court noted Google Book Search makes books searchable and only displays snippets of the book, making them transformative and the practice a fair use.

2: Defining Public Good

One of the IA’s arguments was that its service was in the public interest. They claimed that lowering barriers to access books was a public service.

However, the court took a dim view of that.

True, libraries and consumers may reap some short-term benefits from access to free digital books, but what are the long-term consequences? 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.

The court examined the copyright act’s intention: “to promote the progress of science and useful arts.” The court found that favoring the IA would harm authors and decrease their motivation to create new works. That, in turn, would result in fewer works being created and harm to everyone in the long term.

In short, the court found that siding with the IA would harm libraries, readers, publishers and authors alike.

3: Not a Commercial Use

The IA did score one win in this case. The lower court ruled that the IA’s use of the material was commercial. The argument was that, even though the IA is a non-profit organization, it financially benefited from the distribution. This included a donation button and other ways for users to give money.

This was one area where the Second Circuit disagreed with the lower court. It found that the use was not commercial since users were never charged for the service and did not run ads against it.

The court compared the IA to TVEyes, a media monitoring service that lets users locate and view clips that mention specific topics. The court considered TVEyes a commercial service because it directly charged users for access to its service.

In that case, the Second Circuit overturned a lower court decision, finding that TVEyes was not a fair use. As such, this decision favored the IA in this case, but it was not enough to overcome the other issues with their fair use argument.

4: The Importance of Warhol

The recent Warhol ruling, including both the Second Circuit’s decision and the Supreme Court’s decision, is cited 31 times in this decision.

As one might expect, the bulk of the discussion regarding Warhol focuses on the issue of transformativeness. The Second Circuit heavily cited the Supreme Court decision in Warhol when determining that the IA’s digital versions are not transformative.

The court, relying on Warhol, found that the IAs intended their copies to substitute the original works. In the Warhol case, the Supreme Court found that a painting of Prince and a photograph of Prince served the same purpose, to represent the musician.

Similarly, in this case, the court found that the IA’s copies served the same function as the originals. To let users read the book.

5: What is a Factual Work?

Finally, the IA attempted to argue that many books were factual in nature.

Under fair use, users of factual works are given (slightly) more leeway under the law than fictional works. The IA attempted to argue that nonfiction books should be treated as “factual” for this purpose. However, the Second Circuit shot down that idea.

The court found that, while the books are based on factual information, they contain original expression that is “close to the core of intended copyright protection.”

While only a minor part of the decision, the finding was that the books were a mixture of both fiction and nonfiction works. However, the works were treated the same for the fair use analysis because of the significant original expression in the nonfiction books.

Bottom Line

The reaction to this decision has been polarizing. Some are decrying the ruling, saying that it will destroy our ability to preserve culture in the future. Others are celebrating it, saying it’s a significant win for authors and content creators.

However, no matter which side you are on, there’s not much arguing against the logic of the decision. Both the lower court and the appeals court were correct in their findings. As I noted when the NEL launched in March 2020, if an individual did what the Internet Archive did, they would be treated as pirates.

Just because you put the trapping of a library around an activity doesn’t mean it is a library.

In the end, I agree with librarian Alex Brown on BlueSky. If this is the burning of the Library in Alexandria, it’s because the library lit the torches themselves. They knew their actions were dubious under the law and did it anyway. Brewster Kahle, the founder of the IA, has a long history of pushing for copyright reforms.

This case won’t likely kill the IA; a much larger lawsuit from the record labels is more likely to do that. Still, it shows that the organization is willing to risk the good it does to push for copyright reforms.

If the IA dies because of this and other lawsuits, the organization will be largely to blame. The publishers are merely winning the fight that the IA deliberately started.