Internet Archive loses book lending lawsuit

The judge in a Federal lawsuit alleging the Internet Archive was illegally creating copies of published works and lending them out for free has ruled for the publishers. At the onset of the COVID-19 pandemic the Internet Archive made its large trove of books available to anyone online without limits, bypassing a Controlled Digital Lending agreement. This pissed off a set of four publishers who sued to stop them.

The IA vows to fight on.


In his ruling, Judge Koetl considered whether the Internet Archive was operating under the principle of Fair Use, which previously protected a digital book preservation project by Google Books and HathiTrust in 2014, among other users. Fair Use considers whether using a copyrighted work is good for the public, how much it'll impact the copyright holder, how much of the work has been copied, and whether the use has "transformed" a copyrighted thing into something new, among other things. 

But Koetl wrote that any "alleged benefits" from the Internet Archive's library "cannot outweigh the market harm to the publishers," declares that "there is nothing transformative about [Internet Archive's] copying and unauthorized lending," and that copying these books doesn't provide "criticism, commentary, or information about them." He notes that the Google Books use was found "transformative" because it created a searchable database instead of simply publishing copies of books on the internet.

Koetl also dismissed arguments that the Internet Archive might theoretically have helped publishers sell more copies of their books, saying there was no direct evidence, and that it was "irrelevant" that the Internet Archive had purchased its own copies of the books before making copies for its online audience. According to data obtained during the trial, the Internet Archive currently hosts around 70,000 e-book "borrows" a day. 

Is there a specific classification for a "library" that permits lending books without the publisher's agreement? I thought the publishers always got paid.