Hachette v. Internet Archive

Hachette Book Group, Inc. v. Internet Archive, No. 20-cv-4160 (JGK), 664 F.Supp.3d 370 (S.D.N.Y. 2023), WL 2623787 (S.D.N.Y. 2023), was a case in which the United States District Court for the Southern District of New York determined that the Internet Archive, a registered library, committed copyright infringement by scanning and lending complete copies of certain books through controlled digital lending mechanisms. Stemming from the creation of the National Emergency Library (NEL) during the onset of the COVID-19 pandemic, publishing companies Hachette Book Group, Penguin Random House, HarperCollins, and Wiley alleged that the Internet Archive's Open Library and National Emergency Library facilitated copyright infringement of their books.

The case primarily concerns the fair use of controlled digital lending (CDL) of complete copies of certain books owned by the publishing companies that were party to the case. The case does not concern the display of short passages, limited page views, search results, books out of copyright, out of print, or books without an ebook version currently for sale.

On March 25, 2023, the court ruled on the case. In August 2023, the parties reached a negotiated judgment, including a permanent injunction barring the Internet Archive from lending complete copies through CDL of some of the plaintiffs' books. The decision was upheld by the Second Circuit Court of Appeals in September 2024, and the Internet Archive announced in December 2024 that it would not challenge further.

The Internet Archive is a non-profit organization and legally a library; it is governed by copyright laws specific to libraries. It is 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 used 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 ensured that only one digital copy is in use for each print copy or otherwise authorized ebook copy available.

On March 24, 2020, following 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. More than one user could borrow a book at the same time. Two months later, on June 1, the National Emergency Library (NEL) was met with a lawsuit from four book publishers. Two weeks after that, on June 16, the Internet Archive closed the NEL, and the prior Open Library CDL system resumed after the 12 weeks of NEL usage.

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. Furthermore, they argued that the Internet Archive was not abiding by CDL, as it had acknowledged that its partner libraries were not always withdrawing their physical copies from their shelves.

By June 2022, both parties to the case requested summary judgment for the case, each favoring their respective sides; Judge John G. Koeltl approved of a summary judgment hearing to take place later in 2022. No summary judgment was issued, and instead a first hearing was held on March 20, 2023. Over the course of the hearing, Koeltl appeared unmoved by the Internet Archive's fair use claims and unconvinced that the publishers' market for library e-books was not impacted by their practice.

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.