They’re burning the modern Library of Alexandria. That’s one way to describe the recent ruling of the Second Circuit US Court of Appeals against the Internet Archive (IA). The court sided with big-name publishers like Hachette, ruling that IA was violating copyright law with its online lending program. The decision nuked over five hundred thousand books from the IA lending library.
The IA’s National Emergency Library (NEL) was a remarkable nonprofit initiative launched in 2020 during the pandemic, offering vital access to books while people were separated from their friends, family, colleagues, recreational sites, bookstores, and libraries. The separation affected leisure readers as well as those who rely on book access for work, including public and private researchers.
The emergency library was part of the IA’s broader access program, the Open Library. The NEL, however, allowed more users to check out digital “copies” of books than they could under the more restricted Open Library rules. In essence, when the pandemic closed physical libraries, the IA threw open the doors of its digital library. Knowledge, after all, wants to be free.
Matthew Gault, writing for Gizmodo, notes that the court rejected the IA’s defense that its digital lending practice was fair use under copyright law. The court ruled that simply scanning and sharing digital copies, without license or corresponding physical books, wasn’t protected. Incidentally, this practice resembles what big capital’s artificial intelligence companies do when they scrape an author’s work to train their models. But that’s another matter, of course.
Gault points out that the court, while ruling against IA, still criticized the publishing industry for “screwing over libraries.” The court acknowledged that “eBook licensing fees may impose a burden on libraries and reduce access to creative work.”
“May,” indeed. They most certainly do. High licensing fees are a plague for libraries, limiting their budgets and access to books while also reducing funding for community services like internet access and gathering spaces. Meanwhile, HarperCollins, one of the plaintiffs, has recently seen profits “soar” as revenue increased 61 percent in 2024.
Fortunately, the appeals court overturned a lower court’s absurd ruling that the IA was engaged in commercial activity on account of, among other things, its heretical appeal for donations to sustain its nonprofit operations.
The Electronic Frontier Foundation, which defended IA and its Controlled Digital Lending program, debunked publisher arguments that the IA lending program had lost the companies millions. The EFF argued that “libraries have paid publishers billions of dollars for the books in their print collections,” adding that libraries serve as vital knowledge keepers to boot, “investing enormous resources in digitization in order to preserve those texts.”
According to the EFF, the program “helps ensure that the public can make full use of the books that libraries have bought and paid for. This activity is fundamentally the same as traditional library lending, and poses no new harm to authors or the publishing industry.”
The EFF is absolutely right. Libraries, whether digital and physical, play an indispensable role in preserving knowledge. Publishers are cynical beasts, ready to abandon titles and forget them altogether if they’re not moving copies. Books go out of print, books are forgotten, books become hard to obtain. A mass library with digital copies readily accessible to readers is a tremendous service for readers, researchers, and the preservation and distribution of knowledge.
It’s no surprise that the courts have sided with the publishers. For decades, copyright law has increasingly served the interests of large companies, narrowing the scope of use for individuals while extending rights-protection terms for owners. In today’s world, “intellectual property” takes precedence over access to content.
Anyone who’s seen a digital product they “owned” vanish or faced restrictions on accessing it — think of video games tied to specific systems or movies locked behind proprietary systems — has encountered this phenomenon.
The growth of digital technologies and global interconnectedness has offered the prospect of broader, easier access to books, film, music, games, and more. But those same technologies have been seized and used by capital, by way of a subservient legal regime, to increase profits and restrict access. This outcome was, perhaps, as predictable as it has been disappointing.
The ruling sets a dangerous precedent. It will set back efforts to ensure people have access to important cultural material. Thankfully, the IA is fighting back. Their mission to make knowledge freely accessible to all isn’t over. They’re up against long odds and well-heeled opponents, but their fight is our fight. This case isn’t just about books — though if it were, that would be enough. It’s also about the future of copyright, access to knowledge, and who controls the digital commons.
