In a legal filing on March 15, a group of publisher plaintiffs in the case Hachette v. Internet Archive have requested the Second Circuit court of appeals to maintain Judge John G. Koeltl’s decisive March 2023 judgment. This judgment found the Internet Archive’s (IA) practices of scanning and lending library books as a clear infringement of copyright laws.

The original lawsuit, initiated in 2020 by publishers including Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House, challenges the IA’s broadened book access during the pandemic, specifically through their National Emergency Library.

Internet Archive’s appeal challenged

This appeal follows the Internet Archive’s challenge to the initial ruling, arguing in their December 2023 brief that Judge Koeltl’s conclusions were based on misunderstandings of the facts and incorrect applications of copyright law. They contested the ruling against their controlled digital lending (CDL) methodology, which they argue is a legitimate digital extension of traditional library lending.

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However, the publishers’ latest brief firmly counters this perspective, asserting that CDL represents “a frontal assault on the foundational copyright principle that rightsholders exclusively control the terms of sale for every different format of their work.” They highlighted the non-transformative nature of IA’s CDL, accusing it of merely repackaging their copyrighted works without adding anything substantially new.

The publishers’ attorneys allege that upholding IA’s CDL as fair use could lead to catastrophic consequences for the publishing industry and beyond, potentially destabilising the book market and encouraging rampant, unauthorised digitisation of copyrighted materials by other entities.

The statement said: “Libraries around the country could skirt the current library e-book markets, fundamentally interfering with the Publishers’ digital strategies and destabilizing book markets. More broadly, other technology companies could implement their own unchecked mass-digitization programs for books and other media, including movies, music and video games, thus seizing control of digital distribution and misappropriating valuable intellectual property.”

Protecting authors and publishers

In September, the Internet Archive filed its notice to appeal in the case. At the time, the IA wrote that, “we know this won’t be easy, but it’s a necessary fight if we want library collections to survive in the digital age.”

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The IA claimed that it was protecting access to libraries, saying: “The core values and library functions of preservation and access, equal opportunity, and universal education are being threatened by book bans, budget cuts, onerous licensing schemes, and now by this harmful lawsuit.”

Terrence Hart, the General Counsel for the Association of American Publishers, voiced strong support for the District Court’s ruling against the Internet Archive after the appeal was filed. Hart said, “The publisher plaintiffs and AAP community stand behind the District Court’s clear opinion in this case, establishing that the Internet Archive’s industrial scale format-shifting activities constitute copyright infringement, consistent with ample other precedent that defines the clear boundaries of fair use and first sale provisions.”

He firmly rejected the legality of the Internet Archive’s practices, stating, “There is simply no legal support for the notion that Internet Archive or a library may convert millions of eBooks from print books for public distribution without the consent of, or compensation to, the authors and publishers.” Hart assured that the publishers would “vigorously litigate the appeal of this case.”