What you need to know about the Internet Archive’s appeal loss

The Internet Archive’s appeal could spell further trouble for the non-profit, as it is in the middle of a another copyright lawsuit with music publishers that could cost more than $400m if it loses.

The Internet Archive has been dealt a serious blow in court, as it lost an appeal case to share scanned books without the approval of publishers.

The loss could lead to serious repercussions for the non-profit, as hundreds of thousands of digital books have been removed from its library. The Internet Archive is also in the middle of another copyright lawsuit from multiple music labels for digitising vintage records.

What is the Internet Archive?

Based in San Francisco, the Internet Archive is one of the world’s most well-known libraries for scanned copies of millions of physical books that it lends to people all over the globe for free.

The non-profit organisation claims its mission is to provide “universal access to all knowledge” and has been archiving digital content for years such as books, movies, music, software and more.

The archive claims to have more than 20m freely downloadable books and texts, along with a collection of 2.3m modern e-books that can be borrowed – similar to a library. But while supporters say the Internet Archive is a valuable source of easily accessible information, its critics claim it breaches copyright laws.

What caused the major publisher lawsuit?

The Internet Archive let users access its vast digital library for years before the lawsuit began, but a decision during the Covid-19 pandemic prompted the legal response.

Previously, only a limited number of individuals were allowed to borrow a digital book from the non-profit’s Open Library service, a principle that the archive referred to as controlled digital lending.

But this rule was relaxed during the pandemic and led to the creation of the archive’s National Emergency Library, which meant an unlimited number of people could access the same e-books. After this decision, the major publishers launched their lawsuit and the archive went back to its controlled lending practices.

The four publishers – Hachette, Penguin Random House, Wiley, and HarperCollins – said the Internet Archive was conducting copyright infringement through its practices. But the lawsuit went after both library services and had a major impact – in June 2024, the Internet Archive said more than 500,000 books had been removed from its library as a result of the lawsuit.

The non-profit’s founder Brewster Kahle previously said libraries are “under attack at an unprecedented scale”, with a mix of book bans, defunding and “overzealous lawsuits like the one brought against our library”.

From a loss to an appeal

Unfortunately for the digital library, a judge sided in favour of the publishers on 24 March 2023, agreeing with their claims that the Internet Archive’s practices constitutes “wilful digital piracy on an industrial scale” that hurts both writers and publishers.

The archive appealed this decision later that year, but the appeals court determined that it is not “fair use” for a non-profit to scan copyright-protected print books in their entirety and distribute those digital copies online. The appeals court also said there is not enough of a change from a printed copy to a digital one to constitute fair use.

“We conclude that IA’s use of the works is not transformative,” the appeals court said. “IA creates digital copies of the works and distributes those copies to its users in full, for free. Its digital copies do not provide criticism, commentary, or information about the originals.”

The appeals court did disagree with the previous court’s verdict that the Internet Archive’s use of these copyrighted materials is “commercial in nature” and said it is “undisputed that IA is a nonprofit entity and that it distributes its digital books for free”.

What does this mean for the Internet Archive?

The archive’s director of library services Chris Freeland said the non-profit is “disappointed” in the decision by the appeals court and that it is “reviewing the court’s opinion and will continue to defend the rights of libraries to own, lend and preserve books”.

Freeland also shared a link to readers where they can sign an open letter asking publishers to restore access to the 500,000 books removed from the archive’s library.

The loss also presents a bad precedent for the archive’s Great 78 Project, which is focused on the discovery and preservation of 78rpm records. The Internet Archive has been working to digitise millions of these recordings to preserve them, adding that the disks they were recorded onto are made of brittle material and can be easily broken.

“We aim to bring to light the decisions by music collectors over the decades and a digital reference collection of underrepresented artists and genres,” the Internet Archive says on the project page.

“The digitisation will make this less commonly available music accessible to researchers in a format where it can be manipulated and studied without harming the physical artefacts.”

But multiple music labels are suing the Internet Archive for this project and claims it has “wilfully reproduced” thousands of protected sound recordings without copyright authorisation. The music labels are seeking damages of up to $150,000 for each protected sound recording infringed in the lawsuit, which could lead to payments of more than $412m if the court rules against the Internet Archive.

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