Court’s Rejection of the Internet Archive’s Excuse For Pirating E-Books Is a Victory for Copyright

A federal judge has rightly and thoroughly rejected an argument by the Internet Archive, a non-profit organization that digitizes print books for Internet users to access, that the organization could evade copyright law by claiming its actions were transformative and thus protected by fair use. The ruling in Hachette v. Internet Archive correctly finds no merit to this argument, upholding copyright law and marking an important win for rightsholders.

Internet Archive hosts millions of books on its website that users can download and read at no cost. While many of these books are in the public domain, the website also has 3.6 million books protected by copyright, including 33,000 works owned by the publishers in this lawsuit. These works were not only protected by copyright, but in circulation and available for purchase, meaning that publishers faced real financial harm by Internet Archive posting them online for anyone to download for free. The lawsuit was not about books in the public domain, out-of-print, or orphan works.

But anti-intellectual property (IP) advocates tried to make this case a rallying point for copyright critics. The Electronic Frontier Foundation (EFF), which spearheaded the defense’s narrative to further its anti-copyright policy agenda, argued that this was a case about big, bad publishers hurting the poor, little libraries. For example, EFF’s legal director decried “publishers’ efforts to limit access to library books.” But the facts don’t back up that claim. Indeed, the facts of the case were not in dispute; Internet Archive admits its actions violated the exclusive rights of the publishers, but argues they were excused by the fair use doctrine. Fair use allows for unauthorized uses of copyrighted content, such as for criticism, news reporting, and teaching. While fair use is an important element of copyright law, it does not allow for blatant theft.

Internet Archive’s fair use defense rested on its claim that its actions were transformative. It argued that since its digitized versions were scanned images of books rather than the e-book versions licensed by publishers, this reduced quality somehow made those digitized books transformative and thus subject to fair use exceptions. However, both versions contain the exact same copyrighted texts. Internet Archive copied word for word, page for page each of its books. The only difference is the format in which they were presented. Simply transferring mediums (i.e., from physical to digital copies) is not transformative, and should not qualify as fair use.

The federal judge in the case, Judge John Koeltl, agreed and rejected the fair use defense, granting summary judgment this week for the publishers. As Judge Koeltl wrote, “[Internet Archive’s] fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book[…] But no case or legal principle supports that notion. Every authority points the other direction.” In other words, copyright law does not permit an organization to make and distribute illegal copies simply because it has a physical copy of the book.

Internet Archive infringed on the exclusive rights of authors and publishers when it made and distributed digital copies of physical books. Internet Archive did not consult the copyright owners on the digitization of their works, nor did they give them a choice whether to share these derivative works without compensation. Groups like EFF have tried to vilify the rightsholders, hoping to silence them and prevent them from asserting their rights. Although Internet Archive pretends to be a noble, Robin Hood-like organization bullied by greedy publishers for helping the underprivileged access knowledge and literature, it is the real bully, attempting to force IP owners to give up their legal rights.

The court rightly refused to encourage or support such blatant theft and violations of copyright protections. While Internet Archive will likely appeal, Judge Koeltl made the right decision.