The Internet Archive has lost its first fight to scan and lend e-books like a library

A federal judge has ruled against the Internet Archive in Hatchette v. Internet Archive, a lawsuit brought against it by four book publishers, deciding that the website does not have the right to scan books and lend them out like a library.

Judge John G. Koeltl decided that the Internet Archive had done nothing more than create “derivative works,” and so would have needed authorization from the books’ copyright holders — the publishers — before lending them out through its National Emergency Library program.

The two sides went to court on Monday. We’ve asked the Internet Archive if it plans to appeal.

In his ruling, Judge Koetl considered whether the Internet Archive was operating under the principle of Fair Use, which previously protected a digital preservation project by Google Books and HathiTrust in 2014. Fair Use considers whether using a copyrighted work is good for the public, how much it’ll impact the copyright holder, 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.”

He also dismissed arguments that the Internet Archive might theoretically have helped publishers sell more copies of their books, and said it was “irrelevant” that it had purchased its own copies of the book before making copies for its online audience.

The lawsuit came from the Internet Archive’s decision to launch the “National Emergency Library” early in the covid pandemic, which let people read from 1.4 million digitized books with no waitlist. Typically, the Internet Archive’s Open Library program operates under a “controlled digital lending” (CDL) system where it can loan out digitized copies of a book on a one-to-one basis, but it removed the waitlists to open access to the books it had on hand as people were forced to be at home. Some weren’t happy about that choice, and a group of publishers, including Hachette, HarperCollins, and Penguin Random House sued the Internet Archive in June 2020.