The Internet Archive has lost a major legal battle — in a decision that could have significant impact on the future of internet history.

Today, the US Court of Appeals for the Second Circuit ruled against that long-running digital archive, upholding an earlier ruling in Hatchette v. Internet Archive that found that one of the Internet Archive’s book digitization projects violated copyright law, Wired reported.

Notably, the appeals court’s ruling rejects the Internet Archives’s argument that its lending practices were shielded by the fair use doctrine, which permits for copyright infringement in certain circumstances, calling it “unpersuasive.”

In March 2020, the Internet Archive, a San Francisco-based nonprofit, launched a program called the National Emergency Library, or NEL. Library closures caused by the pandemic had left students, researchers, and readers unable to access millions of books, and the Internet Archive has said it was responding to calls from regular people and other librarians to help those at home get access to the books they needed.

The NEL was the subject of backlash soon after its launch, which some authors arguing it was tantamount to piracy. In response, the Internet Archive wishing two months scuttled its emergency approach and reinstated the lending caps. But the damage was done. In June 2020, major publishing houses, including Hachette, HarperCollins, Penguin Random House, and Wiley filed the lawsuit.

Reuters reported a U.S. appeals court sided with four major book publishers that accused the nonprofit Internet Archive of illegally scanning copyrighted works and lending them to the public online for free and without permission.

The 2nd U.S. Court of Appeals in Manhattan agreed with Hatchette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House that the archive’s “large scale” copying and distribution of entire books did not amount to “fair use.”

Publishers accused the nonprofit of infringing copyrights in 127 books from authors like Malcolm Gladwell, C.S. Lewis, Toni Morrison, J.D. Salinger, and Elie Wiesel, by making the books freely available through its Free Digital Library.

But in a 59-page decision on Wednesday, Circuit Court Judge Beth Robinson said the archive merely supplanted the original books rather than transform them into “something new.”

She said making books available for free harmed publishers and would “undoubtedly negatively impact the public,” by taking away the incentive for many consumers and libraries to pay for books and for many authors to produce new works.

Gizmodo reported: For years, the IA scanned physical copies of library books and allowed people to check out digital versions through its Open Library project. It did so on a one-to-one basis.

Meaning that checking out a digital copy would pull it from the “shelf” until someone returned it. In 2020, and the pandemic shut down libraries across the planet, it expanded its effort with the National Emergency Library program. Under the NEL, books were rented indefinitely. 

The publishing world didn’t react well to the NEL and the IA shut down the program two months after it launched. Then the publishers, including Hatchette, HarperCollins, Penguin Random House, and Wiley sued. The court ruled in favor of the publishers in 2023 and the IA appealed.

In my opinion, this does not sound good for the Internet Archive. It is unclear to me why these huge publishers are so upset about the Internet Archive functioning like a regular library.