The Internet Archive has lost its appeal in Hachette vs. Internet Archive

Original Article ↗ Hacker News Discussion ↗

A US appeals court has ruled that the Internet Archive’s “controlled digital lending” of scanned books is not fair use, affirming a lower court decision in a case brought by major publishers. Commenters unpack why traditional libraries can lend physical books under first‑sale doctrine while scanning and lending digital copies counts as making and distributing new, infringing copies, and note that current law gives far fewer rights over digital works than physical ones. Many see the ruling as a serious setback for digital libraries and preservation, argue that copyright law is skewed toward publisher interests, and expect preservation to increasingly move to extra‑legal “shadow libraries” unless legislation is reformed.

Scope of the ruling and legal reasoning

  • Appeals court held that IA’s “Controlled Digital Lending” (CDL) is not fair use: scanning entire in‑copyright books and lending digital copies, even 1:1 with owned print copies, infringes copyright.
  • Court applied the four fair‑use factors and found IA failed all:
    • Use not transformative (just a different format of the same work, used the same way).
    • Entire works copied.
    • Expressive works at issue (books).
    • Digital lending competes with publishers’ e‑book/licensing markets.
  • The existence of publisher e‑book programs and library licenses weighed heavily against IA; CDL was seen as undercutting an established commercial market.

Why physical libraries are treated differently

  • Many commenters struggled with why 1:1 digital lending differs from physical lending.
  • Explanations offered:
    • Physical lending does not make copies; CDL necessarily does.
    • First‑sale doctrine applies only to “material objects”; digital files are usually licensed, not sold.
    • Books wear out and get lost; digital copies do not, so revenue dynamics differ.
  • Some argue this is an arbitrary, format‑based distinction; others say it follows directly from the statute’s definitions of “copy” and “phonorecord”.

Impact on CDL, libraries, and precedent

  • Strong concern that the decision broadly poisons CDL, even for libraries that own print copies and enforce strict 1:1 lending.
  • Others note traditional e‑lending via publisher licenses is unaffected; IA’s model lacked such licenses.
  • Several see IA’s “National Emergency Library” (unlimited simultaneous lending during COVID) as a strategic blunder that pushed publishers to sue and made the case easier to lose.
  • Some worry about chilling effects on preservation projects (other IA collections, Great 78 Project, software, games); others note damages are likely limited by statutory library carve‑outs and prior settlement.

Normative debates: copyright, access, and AI

  • Many see the outcome as morally wrong but legally predictable; some call for legislative reform (shorter terms, digital first‑sale, explicit CDL exception).
  • Strong frustration that digital buyers have fewer rights than physical buyers; sense of “rights being stripped” in the move to DRM and licenses.
  • Comparisons drawn to AI training: people question why large models trained on copyrighted works may be argued as fair use while IA’s clearly access‑oriented copying is not; others note AI legality is still unresolved.

Responses and proposed workarounds

  • Suggestions: support IA financially; mirror or “archive the archive”; rely more on shadow libraries (Sci‑Hub, LibGen, Anna’s Archive) for preservation.
  • Some float technical/legal hacks (robot+camera streaming pages, aggressive caching boundaries), but others point to past cases (e.g., Aereo) as evidence courts will look through such schemes to intent.