The US Court of Appeals for the Second Circuit has sided with major publishers in a case revolving around the Internet Archive’s e-book lending program, branded as a form of “piracy.”
The National Emergency Library, NEL, started in March 2020 and was supposed to help those cut off from libraries just as the pandemic restrictions were starting to descend upon society.
NEL was born out of an existing, similar program called the Open Library. The difference is that the Open Library treated ebooks like their physical counterparts, and limited the lending of scanned books to one person at a time, while NEL sought to be more “generous” and did away with this restriction.
Now, the court’s decision is seen by some as a major blow to the non-profit that could also affect the internet as a whole.
We obtained a copy of the opinion for you here.
The copyright lawsuit was originally filed and won by Hatchet (along with HarperCollins, Penguin Random House, and Wiley), but here Internet Archive was hoping to overturn a previous district court ruling on appeal.
However, the Circuit Court upheld that decision which declared book digitization a violation of copyright. The Internet Archive attempted to argue that the fair use rule from relevant law was applicable to the lending scheme it had in place.
The district court judge, John G. Koeltl, saw no merit to this, saying the Internet Archive merely created derivative, rather than transformative works – the latter of which would have been covered by fair use.
And the appellate court was not convinced. Other than publishers, some authors were also vocally opposed to NEL – pandemic or no pandemic. By May, the Internet Archive recognized “the error of its ways” and went back to the Open Library model. But it was too late, as the lawsuit came in June 2020.
The Circuit Court’s decision has been predictably welcomed by the plaintiffs while causing disappointment among the supporters of the kind of practices carried out by the Internet Archive, and of course, the non-profit itself.
“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 Internet Archive announced, at the same time urging supporters to sign an open letter to publishers, “asking them to restore access to the 500,000 books removed from our library.”
