The Internet Archive Has Just Been Sued. But Why?

The Internet Archive, a major online library, lost a copyright case against four major publishers on September 4th, 2024. The case accuses the Archive of copyright infringement, a claim based on its lending program, which was briefly expanded in 2020 to allow limitless checkouts, including works published by the suing parties.

The lawsuit, Hachette v. Internet Archive, is brought by the publishing companies Penguin Random House, HarperCollins, Wiley, and Hachette Book Group. The companies argue that the Internet Archive’s business practices constitute copyright infringement and harm their interests and those of authors.

If you’re unfamiliar with the Internet Archive and the services it provides, the consequences of this lawsuit may not be immediately clear. Lending libraries are a standard and accepted part of society, even digital ones. So what is it about the Internet Archive that opens it up to such scrutiny and legal ire?

What is the Internet Archive?

The Internet Archive is a nonprofit organization founded in May 1996 as an archiving service for online media. Countering the ephemerality of online media, the archive houses digital output that could otherwise be easily lost by a business closing or a user deleting their account.

This was done in the name of universal access to and preservation of internet histories and knowledge. In 2005, the Internet Archive broadened its scope and mission and started digitizing physical media as well. On top of the 835 billion web pages archived, tens of millions of books, texts, audio recordings, and videos have also been digitized and made available through the platform. Operating like any other library, each work has a limit on how many people can access it at a time.

To emphasize the importance of publicly accessible knowledge, the Internet Archive has even created its own academic search engine. The engine, Internet Archive Scholar, contains over 35 million research articles, many of which are otherwise paywalled or hard to find.

The National Emergency Library

In March 2020, the Internet Archive opened the National Emergency Library, intended to last the duration of the national emergency during the COVID-19 pandemic. Compensating for closed schools and libraries, this expanded the Archive’s lending practices by removing checkout limits entirely. Any number of people could read a book at once.

However, the library’s legality was tenuous from the beginning. Publishers objected. Then, the United States Copyright Office weighed in with a 22-page letter. In effect, the Internet Archive’s actions had opened them up to a lawsuit. Hatchett et. al sued soon after, and two weeks later, on June 16th, the Internet Archive shuttered the program.

The consequences and grounds of the lawsuit

The court reached its verdict in March 2023. The Internet Archive had committed copyright infringement, and its lending practices were not covered by fair use. The archive had been digitized and distributed without permission from the publishers and directly harmed publishing sales. The Internet Archive appealed the decision, and the case was moved to the Second Circuit Court of Appeals.

The result, announced on September 4th, 2024, affirmed the March 2023 ruling and found the Internet Archive culpable. This decision differs from the previous one only in that it rejected the Internet Archive as a commercial venture. Instead, it re-classified the archive as a non-profit. However, the archive was still forced to remove 500,000 books owned by the suing publishers. In addition, it’s on the hook for a settlement payout to cover the suing parties’ legal fees (per PublishersWeekly).

The Archive has released its own statement, characterizing the court’s decision as anathematic to libraries’ rights to “own, lend, and preserve books.” They plan to appeal the decision once again.

Copyright infringement or a noble cause?

But publishers and the authors they publish are firm in their belief that what the Internet Archive did was wrong. One author, Sandra Cisneros, claimed seeing her work digitized “was like I had gone to a pawn shop and seen my stolen possessions on sale” (per Reuters).

The court and publishers’ own perspective is that the rights of authors and publishers supersede the Archive’s own values and goals. The decision is quoted as saying that while the Internet Archive and others may “lament the consolidation of editorial power and criticize publishers for being motivated by profits, behind Publishers stand authors who are entitled to compensation for the reproduction of their works and whose ‘private motivation’ ultimately serve[s] the cause of promoting broad public availability of literature, music, and the other arts” (per avclub).

The court’s opinion is clear: like it or not, the books in question are not the public’s. They belong to the publishers, without whom we’d have no books at all.

The second part of this quotation, which is harming publishing businesses and ultimately harms publication, is echoed by the publishers themselves. The American Association of Publishers president and CEO Maria Pallante responded by stating, “Today’s appellate decision […] reminds us in no uncertain terms that infringement is both costly and antithetical to the public interest” (per PublishersWeekly). The AAP and suing parties believe that, in the long term, the Internet Archive’s project is an obstacle to those who bring literacy to the public.

Outside perspectives: What the Internet Archive means to us

But although the ruling is legally sound, many question its broader legitimacy. What was described in the courts as the rights of publishers that have been recast online in a deference to big business? Specifically, deference that comes at the public’s expense.

This sentiment is echoed in a (more grounded) tweet by @brtthnz, speaking to the already cloistered and exclusive nature of academic writing.

The publishing houses have argued that copyright infringement harms writers and writing. But support for the Internet Archive tells another story: it is copyright that gets in the way.

The public library

These paywalls have real consequences. Studies are kept from researchers who need them to understand a topic. Writers lose inspiration that could make entire worlds possible. More importantly, paywalls turn writing into an exclusive, privileged position. If researchers already need to turn to the Internet Archive in Western universities, imagine how poor access is for scholars in the global South, whose universities lack the library networks and archives of their more advantaged colleagues.

This is also true for creative writers, for whom reading widely and deeply is a necessity. The higher the price point to begin, the more creative writing becomes exclusive to the monied. Whether or not the Internet Archive’s business model is a viable model for society (it’s hard to see how it would be, at least for a world built by profit), it provides a defense against this enclosure of the written word.

The day after the ruling on the appeal, internet author and personality Rayne Fisher-Quann (@raynefq) asked people to share their favorite works found on the Internet Archive.

The Twitter thread below features rare, out-of-print works, community projects, and TV shows. The vast majority are too new to fall under the public domain. Among them are a 1919 collection of German lyric poetry, a lesbian zine printed in 2003, and hard-to-find Doctor Who episodes.

While these works are not the direct focus of the lawsuit, their availability hinges on the business model that the lawsuit attacks. The threat to public knowledge from COVID-19, which the emergency library responded to, was immediate. But this lawsuit demonstrates that the dangers run much deeper.

As of now, the Internet Archive is still up and running. I recommend you pay it a visit.