A federal judge has approved a permanent injunction against the online Internet Archive from scanning and sharing all copyrighted books already made available by publishers.
Judge John Koeltl had already ruled in March that the Archive had illegally offered free e-editions of 127 books in copyright, including works by J.D. Salinger and Toni Morrison.
Four leading publishers — Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House — had sued the Archive in 2020 in response to its establishing a “National Emergency Library” early in the pandemic, when most libraries and bookstores were shutdown. The Archive had contended that it was protected by fair use and that it had a larger mission to make information as widely accessible as possible.
The injunction was part of an agreement filed last week by the two sides in the lawsuit. Koeltl, of the U.S. District Court in Manhattan, did agree with the Archive on one issue that remained in dispute: The publishers had wanted the injunction to cover e-books even if the publisher itself had not released one, while the Archive wanted the injunction to apply only when an e-book was available.
All 127 books cited by the publishers had e-editions.
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“The Court has narrowly tailored the injunctive relief in this case to cover only copyrighted works, like the Works in Suit, that are available from the Publishers in electronic form,” Koeltl wrote.
Maria Pallante, president and CEO of the trade group the Association of American Publishers, said in a statement Tuesday that the AAP was “extremely pleased that the district court has approved the proposed consent judgment.” She added that the scope of the injunction would have a “very minimal impact.”
“The overwhelming majority of the tens of thousands of books that plaintiffs make available in print are also commercially available from them as authorized ebooks,” she said. “Nor are the plaintiffs precluded from enforcing under the Copyright Act the small percentage of works that may not be covered by the injunction.”
The Internet Archive has said it plans to appeal the decision from March. Asked for comment Tuesday by The Associated Press, an Archive spokesperson referred to a blog posting last week by founder Brewster Kahle.
“Libraries are under attack at unprecedented scale today, from book bans to defunding to overzealous lawsuits like the one brought against our library,” Kahle wrote. “These efforts are cutting off the public’s access to truth at a key time in our democracy. We must have strong libraries, which is why we are appealing this decision.”
The Archive, which features links to a vast range of print, audio and visual materials, also faces legal action from the music industry. Last week, Sony Music Entertainment and five other companies sued the Archive for digitizing 78 rpm records by Frank Sinatra, Billie Holiday and thousands of others that the plaintiffs say remain in copyright. The recordings are part of the Archive’s “Great 78 ” project.
“When people want to listen to music they go to Spotify,” Kahle wrote in response. “When people want to study sound recordings as they were originally created, they go to libraries like the Internet Archive. Both are needed. There shouldn’t be conflict here.”
