Bookmark this! Your access to free online books just became harder

One of the largest digital repositories of knowledge has lost a major legal battle against big publishers—a development that can have a significant impact on the future of internet history.

The US Court of Appeals for the Second Circuit in Manhattan ruled against the Internet Archive—a US-based non-profit organisation that lets people access millions of books online without charge—saying it is guilty of violating copyright law by scanning books and lending them to the public for free.

The court ruling means the Internet Archive will continue offering free books to the public under the controlled digital lending model through its existing Open Library.

However, it would not be able to revive the National Emergency Library (NEL), its pandemic-era initiative that let digital books be checked out by up to 10,000 users at a time—a practice the Internet Archive acknowledges was a “deviation” from controlled digital lending.

“We are disappointed in today’s opinion about the Internet Archive’s digital lending of books that are available electronically elsewhere. We are reviewing the court’s opinion and will continue to defend the rights of libraries to own, lend, and preserve books,” the non-profit said in response to the court ruling of September 4.

The decision by the US Appeals Court upheld an earlier ruling passed in March 2023 by the US District Court for the Southern District of New York.

“[The Internet Archive] asks this Court to bless the large-scale copying and distribution of copyrighted books without permission from or payment to the publishers or authors. Such a holding would allow for wide-scale copying that deprives creators of compensation and diminishes the incentive to produce new works,” the latest judgment said, while denying the appeal of the Internet Archive under the Copyright Act.

First-sale doctrine

​​The Internet Archive began digitising books in 2005. It scans on average 4,400 books daily in 20 locations around the world. It contains 44 million books and texts. Titles published in or before 1928 are available for free download, while modern books can be borrowed by anyone without charge.

Four of the US’s ten biggest publishers—Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House—went to court in 2020 against the Internet Archive for lending e-books to people for free under the pretext of “fair use” of copyrighted material.

The main reason for the big publishing houses mounting a legal battle against the non-profit was the NEL, an initiative that the Internet Archive launched when public libraries shut their doors to the public during the global Covid-induced lockdown beginning early 2020.

The NEL initiative was an extension of the Internet Archive’s already existing programme called Open Library. The only difference between the two programmes was the absence of controlled digital lending in the pandemic-era initiative. Unlike the original Open Library initiative, NEL allowed people to borrow a large number of digital books at the same time.

The NEL initiative infuriated the $44 billion US book publishing industry, which accused the Internet Archive of wilfully committing a mass copyright infringement.

At the heart of the dispute was the interpretation of “fair use” and “first sale” doctrines by the Internet Archive.

Owned books versus loaned books

The non-profit believes that the digital version of books that it lends to the general public for a two-week period is protected by the first-sale doctrine—an interpretation rejected by the big publishers.

The doctrine allows the “owner” of a physical book—the Internet Archive in this case—to make its digital file and then lend it to anyone it wants, the only condition being that it must own one physical copy for each e-book it loans out.

The interpretation of the first-sale doctrine is based on how a typical brick-and-mortar public library works.

Except for a brief period—from March 24, 2020, to June 16, 2020, when NEL was effective—the Internet Archive has always lent out one digital file at a time for every single copy of a printed book it owns.

Initially, it allowed only as many concurrent “checkouts” of a digital book as it had physical copies in its possession.

Subsequently, through its Open Libraries Project, Internet Archive expanded its Free Digital Library to include the book collections of partner libraries across the country.

The arrangement allowed the Internet Archive to count physical copies of a book possessed by its partner libraries towards the total number of digital copies it could make available at any given time.

Since the Internet Archive aims to advance the cause of knowledge, the lofty ideal makes its actions fall under “fair use”—a viewpoint that big publishers contest vehemently.