Publishers prevail in lawsuit over Internet Archive’s ’emergency’ e-book lending

A long-running lawsuit over the Internet Archive’s “emergency” e-book lending practices during the COVID-19 pandemic has ended in a loss for the website and a victory for publishers.

The lawsuit concerned the Internet Archive’s National Emergency Library, a program it established at the beginning of the pandemic to allow wider access to some 1.3 million e-books. Previously only able to be checked out one at a time, books were later able to be “borrowed” by many people at once.

The publishers, which already had an uneasy relationship with both the Internet Archive and the digital book-lending community in general, sued soon after in June 2020. The publishers contended that going from single-user borrowing to limitless borrowing essentially turned the system from a notional library into unvarnished piracy.

For its part, the Internet Archive asserted that its use of the books fell under the fair use doctrine, and that the removal of limits was done in the public interest. Furthermore, as a nonprofit organization, the Internet Archive could have no pecuniary motivation.

The courts disagreed, and in March 2023 found the Internet Archive liable. The nonprofit and the plaintiffs reached an agreement, but the Internet Archive also attempted a long-shot appeal — which was just denied, finding that the original judgment was sound. Legally speaking, it is now essentially a matter of fact that what the Internet Archive did was unlawful.

The court ruling is a divisive decision in that the Internet Archive was seen as doing a public good by making these books available at the time, and that overly restricting digital lending may have unintended negative consequences. At the same time it’s also hard not to sympathize with the authors who found their works freely available with no remuneration and little accountability. Wired, which first published the news, has a few statements covering the ground.

As for the publishers, they’ve won the case but left few convinced of their arguments. It’s been questioned whether, as with some other forms of piracy, the Internet Archive’s practices actually hurt sales in any way. And the long-term repercussions of this case and others in the same domain are yet to be explored and may be detrimental to libraries and digital lending in general.