What the Hachette v. Internet Archive Decision Means for Our Library

Our library is still strong, growing, and serving millions of patrons. But the publishers’ attack on basic library practices continues.

Linking references in Wikipedia to the cited page in our library.

Last Friday, the Southern District of New York court issued its final order in Hachette v. Internet Archive, thus bringing the lower court proceedings to a close. We disagree with the court’s decision and intend to appeal. In the meantime, however, we will abide by the court’s injunction. 

The lawsuit only concerns our book lending program. The injunction clarifies that the Publisher Plaintiffs will notify us of their commercially available books, and the Internet Archive will expeditiously remove them from lending. Additionally, Judge Koeltl also signed an order in favor of the Internet Archive, agreeing with our request that the injunction should only cover books available in electronic format, and not the publishers’ full catalog of books in print. Separately, we have come to agreement with the Association of American Publishers (AAP), the trade organization that coordinated the original lawsuit with the four publishers, that the AAP will not support further legal action against the Internet Archive for controlled digital lending if we follow the same takedown procedures for any AAP-member publisher. 

So what is the impact of these final orders on our library? Broadly, this injunction will result in a significant loss of access to valuable knowledge for the public. It means that people who are not part of an elite institution or who do not live near a well-funded public library will lose access to books they cannot read otherwise. It is a sad day for the Internet Archive, our patrons, and for all libraries.

Because this case was limited to our book lending program, the injunction does not significantly impact our other library services.  The Internet Archive may still digitize books for preservation purposes, and may still provide access to our digital collections in a number of ways, including through interlibrary loan and by making accessible formats available to people with qualified print disabilities. We may continue to display “short portions” of books as is consistent with fair use—for example, Wikipedia references (as shown in the image above). The injunction does not affect lending of out-of-print books. And of course, the Internet Archive will still make millions of public domain texts available to the public without restriction.

Regarding the monetary payment, we can say that “AAP’s significant attorney’s fees and costs incurred in the Action since 2020 have been substantially compensated by the Monetary Judgement Payment.” 

Thanks to your continued support, our library is still strong, growing, and serving millions of patrons.

Libraries are going to have to fight to be able to buy, preserve, and lend digital books outside of the confines of temporary licensed access. We deeply appreciate your support as we continue this fight!

37 thoughts on “What the Hachette v. Internet Archive Decision Means for Our Library

  1. Simon E Matyas

    Have I understood rightly that the four Publisher’s books are less than 1% of the validly copyrighted books that IA offers to borrow? Of course I do not count the AAP publishers.
    Sorry if I’ve missed it, but… Out of the 3.6 million scanned books which are still within a valid copyright, and which have been to date available to borrow on IA, how much will be impacted, or removed from lending?

    Keep going IA, this is merely a temporal loss, we are on the right side of history.

    1. Jim C.

      If the materials are available digitally from the publishers then we’re out of luck.

      But I suspect that most of the microfilms are things like old journals that no one has digitally and never will. Which does raise the next question: are materials available on JSTOR or Proquest considered to be exempt or non-exempt from IA use?

      Are they too considered to be available elsewhere?

      1. Ellie Kesselman

        ProQuest is a VERY expensive subscription-based service and is sold at the institutional level only. Unless it is open access, there is a fee to read or borrow individual articles. I don’t think ProQuest content would have ever been accessible through IA.

        JSTOR is an interesting question! I am a non-fee paying registered user. Some content isn’t available to me without institutional access. I don’t think downloading is possible without registering for an account with a Federated login. Lots of the content on JSTOR is available elsewhere, or was at one time. Most JSTOR content is either old journal articles that would otherwise require an Interlibrary Loan from a specialty or academic library OR open access, OR out of copyright. The only problem with including JSTOR in IA (for older works out of copyright) is the download limitation of no more than 100 items per account per month. Maybe IA could get an institutional account that would allow you to get around that.

  2. Alex Farlie

    “Snippet” view under ‘fair-use/fair dealing’ sounds good assuming you can politely negotiate that with publishers. (Essentially this is what Google Books has for some works)

    What I would also find useful, on catalog entries for works still in copyright (alongside the Bibliographic data), is appropriate links either to booksellers websites (examples being Amazon, abebooks, Barnes and Nobel, Waterstones amongst others) where I can purchase the work concerned, or to (paid) subscription services that allow a copyright work to be legally purchased or viewed.

    1. Nel Prrz

      I ask for patience, but can someone please explain to me why a person cannot donate a book to the archive’s library so that it can be loaned out to anyone such as how other libraries do? Or is this not the issue? I just searched for books published by Hatchette, and I didn’t find any so my thought is that it is an issue.

      1. RP

        That’s exactly what the lawsuit was about, that’s what IA was doing, and what they aren’t allowed to do anymore, for at least some publishers’ books.

  3. Akira suzuki

    At least this wasn’t as bad as I thought it would be, it only affects the books that the industry keeps selling, right?On the bright side, it’s a good precedent because archive.org is not a criminal piracy site in the eyes of the law, I’m not from the US so I don’t know much about the law, so I could be wrong.

    1. Jim C.

      Yes. Books that are available digitally from publishers or their online distributors are now banned from the IA lending library. But everything else can remain.

      So if you want a free copy of Malcolm Gladwell you’re out of luck. But most Malcolm Cowley, then this is the place.

  4. Question not answered

    Not very clear about which borrowing books will no longer be accessible at all or to the same extent as at present. That would be fine if the post just said “it’s unclear” at some point.

    1. JIm C.

      The publishers wanted to block ALL lending. The IA said “Can we still make available those protected works that no publisher makes available digitally?”

      The judge said “Yes.” That’s great news for the IA, and great news for most of us users.

  5. Vincent Giannell

    “Because this case was limited to our book lending program, the injunction does not significantly impact our other library services.”
    For now. But I fear that might change.

    1. Jim C.

      He didn’t do that at all. He still allows works that no one else makes commercially available online. That’s a really big deal.

  6. TM

    Archive saved musty books from being lost forever – there is every right to republish these works physically to save the market that has been overrun with long-winded paraphrases/ without talking about it, corporations have stolen texts and used them to create Artificial Intelligence, which they do not talk about, but which drive everything – government scrutiny /should extend to national budgeting to recover hard copies of these resources/ so that I can pay for the information I need /and far-thinking taxpayers store this information, as a challenge to Industry interests, themselves, over the next two hundred years, making for a superior voter base. It is time that the foremost .org in the land admit/ that it has backing on high.

  7. Roger Cole

    I never read anything by the “Big 4” publishers anyway. How many dime store murder mysteries / “self help” books / Fifty Shades/Game of Thrones knockoffs can you read before you go crazy? Small press books are usually better. Will those still be here at IA?

  8. Jim C.

    I think the judge’s amending the consent decree and going along with the IA is great news.

    Really, who comes here to get a copy of any of those commercial bestsellers, of any generation? We come here for orphan works, old magazines, out-of-print books that no publisher is ever going to make available again, etc.

    We come here for those that the judge will still allow. He must have been hearing the criticisms! I wonder who or what got to him?

  9. Hasford Albrecht

    The injunction clarifies that the Publisher Plaintiffs will notify us of their commercially available books, and the Internet Archive will expeditiously remove them from lending.

    Would it be possible for these notifications to be made publicly available in a collection on IA? Like DMCA takedown notices, they could prove interesting reading.

    I’d say the least the publishers can do is explain what all the fuss was about after forcing IA to spend millions of dollars it does not have to defend themselves in this lawsuit. A lawsuit in which the publishers were entirely unable to prove they were losing so much as a plugged nickel in any of this.

    1. luke

      The best use of such a list would be to encourage a boycott of every affected work, but it is both simpler and more effective to refuse to buy ANYTHING print or online published by any of the plaintiffs. This is what sank the RIAA filesharing lawsuits: tens of millions responded by refusing to buy any more CD’s.

      The goal should be to sink these publishers outright, ending their ability to harass anyone

  10. Simon E Matyas

    Though the judge made a fair decision in my opinion, I still find it a disgrace to the source of freedom, the public libraries, the ancient servers, that the law should stipulate any restrictions on this most liberal of acts—physical or digital—that of book lending.

  11. A Mint of Man

    From my understanding of the proceeding, only titles directly offered from the 4 aforementioned publishers under AAP or their own respective umbrella of outlets are included in this injunction. Nothing else.
    Titles that are under AAP umbrella but not of those 4 publishers, titles that are not under AAP umbrella including those affiliated with or digitized via Amazon, Google, Audible, and the likes are not inclusive under this injunction.

    Is this correct?

    Is this correct?

  12. someone

    I urge IA to:
    1) not to hide the items, but add to them something like: “this item were available to borrow, but due to the pulisher’s demand [name of the publisher] & court order, is NOT anymore.”
    2) provides in the fist page of the IA site a full list of names, and statistics ( name of the publishers, number of the items) of all items that were subject to this unavailability.

  13. Olivia McIntosh

    In a capitalistic society a free book is forbidden. Only literature that is antiquated becomes free. There is some comfort in this, because of IA we will not lose the most beautiful literature of the world’s past history. Some of the ancient stories are the best. Anyone involved in historical research can appreciate all IA has to offer.

  14. Robert Scott Quiggle III

    In civil cases, the plaintiff must prove not only that a law was broken, but that they were actually defrauded by that law being broken. In the case of books that are copyrighted out but of print, and not otherwise available digitally, IA was not defrauding anyone—ie, no sales were lost simply because the items were not for sale. I suspect that is the basis whereby the judge allowed IA to continue lending those materials. That is a huge “win” despite having lost their case, and I think IA should cut their losses and chill on an appeal. Strategic retreat.

  15. Author Advocate

    Good. Piracy is wrong. Intellectual property rights belong to the creators and their heirs, who can choose to license some of those rights to commercial publishers, movie studios, foreign publishers, etc. What IA did was completely wrong, as the court case made conclusive.

  16. Bob

    Thank you Chris Freeland for your explanation – which sounds less onerous than the media has made it to be.

    May I offer a suggestion to mitigate future lawsuits? You should publish annual (or monthly) statistics showing how many books have been “read” that breaks them down by: 1) public domain; 2) out-of-print; and 3) orphan works.

    I suspect such readily-available statistic will help bolster’s IA’s legal position.

  17. bahadir

    Can you publish (and update) books you have withdrawn fter this 4 publisher thing? To make that list searchable would be extra great.. Thanks. Keep up the good work

  18. Roy Murphy

    Ok! If that’s the way the four publisher’s want to play it why don’t we readers just boycott their books, tell authors to change and tell our local booksellers what we’re up to. Money talks and wrongs can be righted by our resistance. How dare they attack our libraries! [From a retired teacher-librarian}

  19. Murdo

    Will the Internet Archive verify (and/or allow users to verify) that books removed under this provision continue to be available in electronic format from the publishers? Publishers might in the future delete them from electronic distribution or impose unreasonable terms so there needs to be some checks on that publishers list.

  20. Donald D'Abrera

    I’m on the IA only for Engineering and Maths textbooks. My music selections are available on YouTube. My fiction books are only Science Fiction.
    Silicon Chip Australia did a very nasty thing recently by buying the rights to an older electronics magazine called Electronics Australia and then asking a free site based in the US to remove old photocopies of Electronics Australia from their website. The Electronics Australia magazines are from the 70’s to the 90’s. If you consider the accelerated pace of electronics, the only value of the old magazines are the ideas it presented. Also EA was a far better magazine than Silicon Chip today. Silicon Chip’s management did this out of pure spite. I subscribe to a far better and original thinking magazine from Europe called Elektor.
    I would be quite happy to subscribe to the textbooks on IA for a small fee. Most of my textbook reading is older textbooks. But again, I find the blanket actions by the publishers wanting to ban IA from lending out books to infringe on my reading when I absolutely do not want any of their new textbooks.

  21. Shirley Koester

    It is a sad day for America when everything is monetized. Many people, who are interested in varied subjects, do not have access to large libraries and repositories. IA fills a gap for many of us who do not have the means to ttravel or discretionary funds to purchase printed material for our subject of ibterest.

  22. Ben

    Why have you stopped adding new non-public domain books, if this only applies to works digitally available from publishers?

Comments are closed.