Written by: Haim Ravia, and Dotan Hammer
The Internet Archive, an American non-profit organization, suffered a major defeat in copyright litigation that book publishers asserted against it regarding the National Emergency Library (NEL) project.
In March 2020, at the onset of the global COVID-19 pandemic, the Internet Archive launched the National Emergency Library (NEL), an online library of around 1.4 million books, many of which are copyright-protected works. NEL offered these books for free reading online, to allow simultaneous online book borrowing for anyone around the world. The unprecedented and pressing global need for access to literature, coupled with the sudden inaccessibility of most libraries or physical print copies, caused by the pandemic, was the driving factor behind the launch, according to the Internet Archive.
In its defense, the Internet Archive explained that it had “maintained a one-to-one owned-to-loaned ratio for its digital books”, by allowing “only as many concurrent “checkouts” of a digital book as it has physical copies” in the possession of the Internet Archive. The Internet Archive later expanded its project to include partner libraries, at which point it shifted to “counting physical copies of a book possessed by partner libraries towards the total number of digital copies it makes available at any given time”.
In March 2020, the U.S. District Court for the Southern District of New York granted the book publishers’ motion for summary judgment, concluding that the Internet Archive engaged in massive copyright infringement of protected works. The Internet Archives appealed the decision, and the Court of Appeals for the Second Circuit affirmed the district court’s decision last month, holding that the Internet Archive’s unauthorized copying is not protected under “fair use” in copyright law.
The Second Circuit found that each of the four factors of “fair use” weighs against the Internet Archive. First, the NEL project is not a transformative use of the books copied. Second, the nature of the copied works – books – warrant elevated protection under copyright law. Third, the NEL project copied works in their entirety, amounting to substantial copyright. Fourth, the NEL project adversely affects the plaintiff’s potential market for the works.
Click here to read the Second Circuit’s decision in the matter of the Internet Archive.
