US Court of Appeal backs publishers in copyright infringement case against Internet Archive

The United States Court of Appeal has backed a copyright infringement decision made by the District Court in March 2023, in favour of publishers Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House. The decision found Internet Archive liable for copyright infringement and rejected all four factors of Internet Archive’s fair use argument.

During the proceedings, the Court addressed the question of whether it is "fair use" for a non-profit organisation to scan copyright-protected print books in their entirety, and distribute those digital copies online, in full, for free, without any authorisation from the copyright owner.

The court heard that "applying the relevant provisions of the Copyright Act, as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no".

Maria A Pallante, president and chief executive of the Association of American Publishers, said: "Today’s appellate decision upholds the rights of authors and publishers to license and be compensated for their books and other creative works and reminds us in no uncertain terms that infringement is both costly and antithetical to the public interest.  Critically, the Court frontally rejects the defendant’s self-crafted theory of ’controlled digital lending’, irrespective of whether the actor is commercial or noncommercial, noting that the ecosystem that makes books possible in fact depends on an enforceable Copyright Act.  If there was any doubt, the Court makes clear that under fair use jurisprudence there is nothing transformative about converting entire works into new formats without permission or appropriating the value of derivative works that are a key part of the author’s copyright bundle."

The full decision can be found here.