The US Second Circuit Court of Appeals has ruled against the Internet Archive, saying that its programme to scan and lend print library books in digital format amounts to copyright infringement.

The ruling was initially made in March 2023, after the Archive was sued by four big publishers including Hachette, Penguin Random House, Wiley, and HarperCollins.

Publishers argued that allowing the Internet Archive’s 1.4 million books to be checked out by anyone, at any time, was “digital piracy on an industrial scale.”

The Archive argued that its digital library fell under ‘transformative fair use’, which according to the US Copyright Office is defined as when something new is added to the original work, giving it a different purpose or character, without replacing the original use of the work.

The appeals court ruled otherwise, rejecting that defence and affirming the decision of the earlier judge in the case, concluding: “IA’s digital books serve the same exact purpose as the originals: making authors’ works available to read. IA’s Free Digital Library is meant to―and does―substitute for the original Works.

“To construe IA’s use of the Works as transformative would significantly narrow―if not entirely eviscerate―copyright owners’ exclusive right to prepare (or not prepare) derivative works.”

Internet Archive’s digitised library mostly contains scanned copies of books that have either been bought or donated, and began life under a controlled digital lending scheme, where each loan corresponded to a physically purchased book held in a library.

This ‘Open Library’ managed to avoid being shut down by publishers for years, until the Archive introduced their National Emergency Library during the pandemic which allowed for multiple digital copies of the same book to be checked out at any time. 

In a blog post following the ruling, Chris Freeland, director of library services at Internet Archive, said: “We are disappointed in today’s opinion about the Internet Archive’s digital lending of books that are available electronically elsewhere. We are reviewing the court’s opinion and will continue to defend the rights of libraries to own, lend, and preserve books.”

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Freeland also used the blog post to point readers towards adding their signature to an open letter to publishers which asks them to restore access to the 500,000 books removed from the digital library.

The loss of the appeal strikes a major blow to the Archive, which now faces another, similar lawsuit from record labels over its collection of over 400,000 recordings of classic, and sometimes rare, 78rpm records. That scheme, dubbed the Great 78 Project, now faces an uphill battle in the courts.