How the Internet Archive's “Free Digital Library” fell to the “fair use” test

"In September 2024, the U.S. Court of Appeals for the 2nd Circuit found the Internet Archive to be in violation of federal law over its “large scale copying and distribution of copyrighted books without permission from or payment to the Publishers or authors.” To allow such behavior to continue, the 2nd Circuit declared in Hachette Book Group v. Internet Archive, “would allow for widescale copying that deprives creators of compensation and diminishes the incentive to produce new works.”

Copyright law is a jagged rock on which many seemingly promising ideas have been wrecked. In this particular case, the perilous legal provision turned out to be Section 107 of the Copyright Act, which governs “the fair use of a copyrighted work.” According to that provision, a copyrighted work may be fairly used without permission from the copyright holder “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”

According to the Internet Archive, that language should be read to fully protect both the collecting and lending practices of its free digital library. “The record is replete,” the group pointed out, “with examples of IA facilitating access to books needed for classroom use and academic research that would not have been possible otherwise.” ..."