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Following three years of litigation in the critical copyright case Hachette Book Group, et al, v. Internet Archive, we now have a strong and favorable result.  In granting summary judgement for the publisher plaintiffs, Judge Koeltl resolved all four fair use factors in the Copyright Act against the Internet Archive (IA). The opinion, issued a week ago on March 24, 2023, can be found here. 

Everyone who values our global, creative economy should read the Court’s opinion in Hachette.  The holdings are a forceful validation of well-established law and an unequivocal rejection of the defendant’s upside-down assertions that its activities support “research, scholarship, and cultural participation by making books more widely available on the Internet.” That description is meant to sound lofty, but it ignores the economic incentives and protections that make creative professions possible in the first place.  As the Court observed, “Any copyright infringer may claim to benefit the public by increasing public access to the copyrighted work” (P. 44, quoting Harper & Row Publishers v. Nation Enterprises).

The AAP helped to guide this suit because we know that copyright is both the lifeblood of authors and the foundation of a sustainable publishing industry. Four companies—Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House—stood as plaintiffs to defend the principles at stake, but our membership includes a broad mix of commercial and nonprofit publishers of nearly every size and specialty, who in turn account to hundreds of thousands of authors. 

The suit was prompted by IA’s mass digitization and distribution of millions of books, without the permission of authors or publishers, in violation of fundamental principles of copyright law.  Internet Archive sought to justify its “Open Library” under a legal theory called “controlled digital lending” (CDL), but the Court firmly rejected that assertion, holding instead that it offers up a competing market substitute for authorized versions of the works in violation of authors’ and publishers’ rights.  

For the full analysis click here.

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