When libraries across the country temporarily closed in the early days of the pandemic, the Internet Archive, an organization that digitizes and archives materials like web pages and music, had the idea to make its library of scanned books free to read in an online database.
The question of that library’s legality became a long-running saga that may have finally ended on Wednesday, when an appeals court affirmed that the Internet Archive violated copyright laws by redistributing those books without a licensing agreement.
The decision, by the U.S. Court of Appeals for the Second Circuit in Manhattan, is a victory for the major book publishers that brought the lawsuit in 2020, and could set a precedent over the lawfulness of broader digital archives.
A federal court ruled against the Internet Archive in March 2023, and the archive removed many works from its online library of books. It appealed the decision last September.
A final appeal could potentially be taken to the Supreme Court. In a statement, the Internet Archive said it was “reviewing the court’s opinion and will continue to defend the rights of libraries to own, lend and preserve books.”
In its appeal, the nonprofit argued that its Free Digital Library was protected by so-called fair use laws, and that scanning the books was a transformative use of the material done in the public interest. The court firmly rejected that claim.
“People are worried about book bannings and the defunding of libraries, but I don’t know that there is really an awareness of what’s going on in the movement toward license-only access to electronic material,” Brewster Kahle, the founder and digital librarian of the Internet Archive, said in an interview on Wednesday.
Libraries are “not just a Netflix reseller of books to their patrons,” he added. “Libraries have always been more than that.”
Unlike traditional libraries, which pay licensing fees to publishers to make their books available for lending, the Internet Archive acquires copies through donated or purchased books to scan and put online. The nonprofit is also known for the Wayback Machine, a popular database of past web pages.