Wired unpaywalled: “The Internet Archive has lost a major legal battle [The case is Hachette Book Group Inc. v. Internet Archive, 2d Cir., No. 23-1260, 9/4/24.]—in a decision that could have a significant impact on the future of internet history. Today, the US Court of Appeals for the Second Circuit ruled against the long-running digital archive, upholding an earlier ruling in Hachette v. Internet Archive that found that one of the Internet Archive’s book digitization projects violated copyright law. Notably, the appeals court’s ruling rejects the Internet Archive’s argument that its lending practices were shielded by the fair use doctrine, which permits for copyright infringement in certain circumstances, calling it “unpersuasive.” In March 2020, the Internet Archive, a San Francisco-based nonprofit, launched a program called the National Emergency Library, or NEL. Library closures caused by the pandemic had left students, researchers, and readers unable to access millions of books, and the Internet Archive has said it was responding to calls from regular people and other librarians to help those at home get access to the books they needed. The NEL was an offshoot of an ongoing digital lending project called the Open Library, in which the Internet Archive scans physical copies of library books and lets people check out the digital copies as though they’re regular reading material instead of e-books. The Open Library lent out the books to one person at a time—but the NEL removed this ratio rule, instead letting large numbers of people borrow each scanned book at once. The NEL was the subject of backlash soon after its launch, with some authors arguing that it was tantamount to piracy. In response, the Internet Archive within two months scuttled its emergency approach and reinstated the lending caps. But the damage was done. In June 2020, major publishing houses, including Hachette, HarperCollins, Penguin Random House, and Wiley, filed the lawsuit..”

• Full Text of Court Opinion
• Complete Case Docket
• Statement – Association of American Publishers – Appeals Court Affirms Decision Against Internet Archive for Copyright Infringement
• See also Bloomberg Law – Internet Archive Digital Lending Not Fair Use, 2nd Cir. Says