1 December 2023

The first hearings in a lawsuit between the Internet Archive, the main service archiving web pages through its “wayback machine” (“time machine”), and four major international book publishers, took place Monday, March 20 in a New York court. The French group Hachette and the American publishers HarperCollins, John Wiley & Sons and Penguin Random House had filed a complaint in 2020 against the foundation which manages the Internet Archive, accusing it of illegally distributing their books without respecting copyright.

Internet Archive has been making backups of almost all Internet sites for more than twenty-five years, to preserve the history of the network. Over the years, it has forged numerous partnerships with libraries, archives and institutions (including the BNF in France), and works with them to preserve this heritage.

Read also: Twenty years of Web archiving: behind the scenes of a titanic project

But this gigantic archive also houses copies of books, documents, videos and even video games. In 2020, the site had set up a free “loan” service, after the closure of libraries during the Covid-19 pandemic. This service extended a pre-existing functionality, which allowed users to consult digital books for a limited period, but the same book could not be consulted simultaneously by more than one person. During the pandemic, the Internet Archive had lifted this restriction, allowing several people to “borrow” the same work simultaneously. A practice similar to those implemented by many libraries around the world, which offer digital lending services, believes the foundation; mass piracy, set up without paying a license to publishers, object the four publishing houses that have filed a complaint.

Debate on the notion of “loan”

During the first hearings, on March 20, Internet Archive lawyers argued that the project is non-commercial, and considered that the service fell within the scope of the American doctrine of fair use (“reasonable use”), which provides for exemptions from the classic intellectual property regime, to facilitate the dissemination of ideas, and could be likened to a classic library loan. A key argument rejected by lawyers for publishing houses, for whom the new Internet Archive service amounted to distributing copies of works.

Judge John G. Koeltl, who presided over this hearing and must determine in particular whether a trial will be necessary to settle the dispute, seemed receptive to the arguments of the publishers, believing that “the question of whether a library can lend a book (…) is not the question posed by this file”. He recalled legal precedents establishing that the complete copy of a book is not covered by the doctrine of fair use. Mr. Koeltl however noted, for the benefit of the defence, that the publishers had not, at this stage, provided any proof of any loss of earnings from which they had suffered.

A decision is expected in the coming weeks, but should in any case only be a first step in what promises to be a long legal process. A conviction for significant damages would directly jeopardize the Internet Archive, an associative structure with a limited budget.

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