Hachette Book Group, Inc. v. Internet Archive

Background

Four book publishers—Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC—sued Internet Archive over 127 copyrighted books. The publishers alleged that Internet Archive scanned print copies, created complete ebook versions, and lent those digital copies through its websites without permission. Internet Archive did not dispute that it made copies, converted the print books into ebooks, distributed the ebooks, displayed them through its online viewer, and made them available through a read-aloud feature.

Internet Archive operated a controlled digital lending program. Under that program, it generally limited the number of digital loans based on print copies held by Internet Archive and participating libraries. Patrons could borrow ebooks without paying, read them in a browser, or download encrypted files. In March 2020, Internet Archive created the National Emergency Library and temporarily removed the one-to-one limit, allowing as many as 10,000 patrons at a time to borrow each ebook. It ended that program in June 2020.

The parties filed cross-motions for summary judgment. Summary judgment is a decision without a trial when the material facts are not genuinely disputed and one party is entitled to judgment under the law. Internet Archive principally relied on fair use, a statutory defense that permits some unauthorized uses of copyrighted works.

Copyright infringement and fair use

The court concluded that the publishers established the basic elements of copyright infringement: they held exclusive publishing rights in the works, and Internet Archive copied the complete works without permission. The court then analyzed Internet Archive’s fair-use defense under the four statutory factors: the purpose and character of the use, the nature of the copyrighted work, the amount copied, and the effect on the potential market.

The first factor strongly favored the publishers. The court held that Internet Archive’s use was not transformative because it simply changed the books from print format to digital format and lent the complete digital versions. The ebooks did not add new expression, meaning, or information about the original works. The court distinguished cases involving searchable databases, snippets, or accessibility formats for print-disabled readers, explaining that Internet Archive made complete, human-readable substitute copies available to the general public.

The court also rejected Internet Archive’s argument that its nonprofit status and free lending made the use noncommercial. It found that Internet Archive received benefits from the lending, including attracting members, soliciting donations, strengthening its position in the library community, and receiving payments connected with used-book purchases. The court also concluded that Internet Archive’s first-sale argument did not help it. The first-sale doctrine allows the owner of a lawfully acquired copy to lend or transfer that copy, but it does not authorize reproducing the entire copyrighted work.

The second factor favored the publishers because the works were published fiction and nonfiction, including creative works close to the core of copyright protection. The third factor strongly favored the publishers because Internet Archive copied the entire books. The fourth factor also strongly favored the publishers because Internet Archive’s free digital copies competed with the publishers’ established market for licensed library ebooks and threatened potential licensing revenue.

The court concluded that all four fair-use factors favored the publishers. It held that fair use does not allow an organization to make complete digital copies of copyrighted books and distribute them as substitutes for authorized ebooks merely because it lawfully acquired print copies or limits simultaneous lending. The court stated that Internet Archive could continue using public-domain books and could make uses consistent with decisions involving searchable databases and limited excerpts, but not the mass reproduction and distribution challenged in this case.

National Emergency Library and damages

The court held that the same analysis applied even more strongly to the National Emergency Library because that program removed the one-to-one limit and expanded unauthorized lending. Internet Archive’s fair-use defense for that program therefore also failed.

Internet Archive asked the court to reduce statutory damages based on its claimed status as a nonprofit educational institution, library, or archive and its asserted belief that its use was fair. The court did not decide that request at this stage. It stated that Internet Archive could renew the request when the parties addressed the judgment.

Disposition

The court granted the plaintiffs’ motion for summary judgment and denied the defendants’ motion for summary judgment. It directed the parties to submit proposals for the procedure for determining the judgment and directed the Clerk to close all pending motions.