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

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A federal judge has ruled against the Internet Archive Hatchette v. Internet Archive, a lawsuit filed by four book publishers, who decided that the website does not have the right to scan and lend books like a library.

Judge John G. Koeltl ruled that the Internet Archive had done nothing but create “derivative works” and thus needed permission from the books’ copyright holders—the publishers—before lending them through the National Emergency Library program.

The Internet Archive says it will appeal. “The ruling of the lower court today Hachette to Internet Archive is a blow to all libraries and the communities we serve,” said Chris Freeland, the Director of Open Libraries at the Internet Archive, writes in a blog post. “This decision affects libraries in the US that rely on controlled digital lending to connect their customers to books online. It hurts authors by saying that unfair licensing models are the only way their books can be read online. And it hinders access to information in the digital age and harms all readers everywhere.”

The two sides went to court on Monday, with HarperCollins, John Wiley & Sons and Penguin Random House joining Hatchette as plaintiffs.

In his ruling, Judge Koetl considered whether the Internet Archive operated under the principle of fair use, which rather protected a project for the preservation of digital books by Google Books and HathiTrust, among others, in 2014. Fair use considers, among other things, whether the use of a copyrighted work is good for the public, how much influence it has on the copyright holder and whether the use has “transformed” a copyrighted thing into something new. But Koetl wrote that the “perceived benefits” of the Internet Archive’s library “do not outweigh the market damage to the publishers.”

He also dismissed arguments that the Internet Archive could, in theory, have helped publishers sell more copies of their books, saying there was no direct evidence, and that it was “irrelevant” that the Internet Archive purchased its own copies of the books before making copies for its online audience. According to statements made at trial, about 70,000 e-books are currently “borrowed” from the Internet Archive per day.

The lawsuit stemmed from the Internet Archive’s decision to close the “National Emergency Library” at the start of the covid pandemic, enabling people to read from 1.4 million digitized books without a waiting list. Typically, the Internet Archive’s Open Library program operates under a “controlled digital lending” (CDL) system, where it can lend digitized copies of a book on a one-to-one basis, but it has removed waiting lists to restrict access to the books. to open it had at hand because people were forced to stay at home. Some were not happy about that choice, and the group of publishers sued the Internet Archive June 2020.