Hachette v. Internet Archive

Hachette Book Group, Inc. v. Internet Archive, No. 20-cv-4160 (JGK), 2023 WL 2623787, 2023 U.S. Dist. LEXIS 50749 (S.D.N.Y. 2023), is a case in which the United States District Court for the Southern District of New York determined that the Internet Archive committed copyright infringement by scanning and distributing copies of books online. Stemming from the creation of the National Emergency Library (NEL) during the onset of the COVID-19 pandemic, publishing company Hachette Book Group alleged that the Open Library and the National Emergency Library facilitated copyright infringement. The case involves the fair use of controlled digital lending (CDL) systems.

On March 25, 2023, the court ruled against the Internet Archive, which plans on appealing.

Background 

The Internet Archive is a non-profit organization dedicated to preserving knowledge and based in San Francisco, California; the Archive maintains Open Library, a digital library index and lending system.  As many of the works in the Internet Archive are under copyright, the Archive uses a controlled digital lending (CDL) system, a practice that relies upon digital rights management (DRM) to prevent unauthorized downloading or copying of copyrighted works. Open Library can generate digitized material (ebooks) from print copy.  The Open Library CDL system ensures that only one digital copy is in use for each print copy or otherwise authorized ebook copy available.

On March 24, 2020, as a result of shutdowns caused by the COVID-19 pandemic, the Internet Archive opened the National Emergency Library, removing the waitlists used in Open Library and expanding access to these books for all readers. Two months later on June 1, the National Emergency Library (NEL) was met with a lawsuit from four book publishers.  Two weeks after that, June 16, the Internet Archive closed the NEL, and the prior Open Library CDL system resumed after the 12 weeks of NEL usage.

Lawsuit 
On June 1, 2020, Hachette Book Group and other publishers, including Penguin Random House, HarperCollins, and Wiley, filed a lawsuit against the Internet Archive for the National Emergency Library. The plaintiffs argued that the practice of CDL was illegal and not protected by the doctrine of Fair Use.

Both sides filed motions for summary judgment. Judge John G. Koeltl ruled on March 24, 2023, against Internet Archive in the case, saying the National Emergency Library concept was not fair use, so the Archive infringed their copyrights by lending its ebook copies without the waitlist restriction. The 127 publishers' books in the suit are also available as ebooks from the publishers. The Internet Archive said afterwards it would appeal this ruling, but otherwise would continue other digital book services which have been previously cleared under case law, such as books for reading-impaired users.

Press conference 
Shortly before oral arguments, the Internet Archive held a press conference with comments from several people who implied that the issues in this case were much broader than the 127 books specifically named in the suit. All presenters agreed that book publishers need to make money to pay their expenses including authors.   The question is whether the National Emergency Library (NEL) actually harmed the publishers.

Lila Bailey, Senior Policy Counsel for the Internet Archive, noted that:
 

Bailey's conclusion was supported by other speakers.

Harvard Law School Professor Lawrence Lessig said that book publishers need to make a profit to serve the public, but the material available to the public should not be limited to what commercial enterprises find profitable.  Netflix, for example, offers subscribers access to thousands of movies and television shows but routinely stops offering content for which the demand is too low.  That doesn't happen with libraries.  Without controlled digital lending, out-of-print books become essentially unavailable to the vast majority of humanity. "We need access to our past, not just the part of our past that is economically or commercially viable."

Expert reports  
An expert report filed with the court by Northeastern Econ Prof. Imke Reimers also reported that "sales in the first five years after an edition’s publication account for up to 90% of lifetime sales."

On the other side, University of Chicago computer science professor Ian Foster reported that the Internet Archive's actual CDL practices sometimes violated their claims, lending out more copies than they physically had.

Final judgment 
While Judge John G. Koeltl issued a summary judgment in favor of the plaintiffs and against the defendant, he did not assess damages. Instead, he directed the parties to brief the court on how they thought the case should be resolved in a way that comports with the judge's decision that the National Emergency Library was not fair use.

Internet Archive founder Brewster Kahle declared their intention to appeal the ruling, but seems not to have done so while the parties continue to negotiate to try to agree on a procedure to determine the judgment to be entered in this case. The deadline for submitting such a procedure has been extended several times. On July 28 Judge Keoltl granted another extension of the deadline to August 11 but added, "No further extensions."

On August 11, 2023, the parties reached a negotiated judgment. The agreement prescribes a permanent injunction against the Internet Archive preventing it from distributing the plaintiffs' books as well as an undisclosed payment to the plaintiffs. The agreement also preserves the right for the Internet Archive to appeal the previous ruling. The Internet Archive filed a notice on September 11, 2023, that it is appealing the ruling to the United States Court of Appeals for the Second Circuit.

See also 
 Authors Guild, Inc. v. Google, Inc.
 Authors Guild, Inc. v. HathiTrust
 Open Library - Hachette v. Internet Archive
 Internet Archive - National Emergency Library, Publishers' lawsuit (Hachette v. Internet Archive)

References

External links
 Judge Koeltl's ruling on cross-motions for summary judgment
 Hachette v. Internet Archive at the Electronic Frontier Foundation
 Court Listener

2023 in United States case law
Fair use case law
Media case law
United States copyright case law
United States District Court for the Southern District of New York cases
Internet Archive