In the United States Court of Appeals For the Second Circuit

August Term, 2023

Argued: June 28, 2024 Decided: September 4, 2024

Docket No. 23-1260

HACHETTE BOOK GROUP, INC., HARPERCOLLINS PUBLISHERS L.L.C., JOHN WILEY & SONS, INC., PENGUIN RANDOM HOUSE LLC,

Plaintiffs-Appellees,

–v.–

INTERNET ARCHIVE,

Defendant-Appellant,

DOES 1–5, INCLUSIVE,

Defendants. *

Before: MENASHI, ROBINSON, and KAHN, Circuit Judges.

* The Clerk’s office is directed to amend the caption as reflected above. Defendant-Appellant Internet Archive appeals from a judgment of the United States District Court for the Southern District of New York (Koeltl, J.) denying its motion for summary judgment and granting Plaintiffs-Appellees’ motion for summary judgment.

Internet Archive creates digital copies of print books and posts those copies on its website where users may access them in full, for free, in a service it calls the “Free Digital Library.” Other than a period in 2020, Internet Archive has maintained a one-to-one owned-to-loaned ratio for its digital books: Initially, it allowed only as many concurrent “checkouts” of a digital book as it has physical copies in its possession. Subsequently, Internet Archive expanded its Free Digital Library to include other libraries, thereby counting the number of physical copies of a book possessed by those libraries toward the total number of digital copies it makes available at any given time.

Plaintiffs-Appellees―four book publishers―sued Internet Archive in 2020, alleging that its Free Digital Library infringes their copyrights in 127 books and seeking damages and declaratory and injunctive relief. Internet Archive asserted a defense of fair use under Section 107 of the Copyright Act. The district court rejected that defense and entered summary judgment for Plaintiffs.

This appeal presents the following question: Is it “fair use” for a nonprofit organization to scan copyright-protected print books in their entirety, and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no. We therefore AFFIRM.

ELIZABETH A. MCNAMARA, Davis Wright Tremaine LLP, New York, NY (Linda J. Steinman, John M. Browning, Jesse M. Feitel, Carl Mazurek, Davis Wright Tremaine LLP, New York, NY; Scott 2 A. Zebrak, Matthew J. Oppenheim, Danae Tinelli, Oppenheim + Zebrak, Washington, D.C., on the brief), for Plaintiffs-Appellees. JOSEPH C. GRATZ, Morrison & Foerster LLP, San Francisco, CA (Joseph R. Palmore, Diana L. Kim, Aditya V. Kamdar, Morrison & Foerster LLP, Washington, D.C.; Corynne M. McSherry, Electronic Frontier Foundation, San Francisco, CA, on the brief), for Defendant-Appellant. Jason M. Schultz, Sunoo Park (admission pending), Jake Karr, Technology Law and Policy Clinic, New York University School of Law, New York, NY, for Amici Curiae Copyright Scholars Jonathan Askin, Patricia Aufderheide, Dr. Patrick Goold, Stacey M. Lantagne, Sari Mazzurco, Sunoo Park, Aaron Perzanowski, Blake E. Reid, Jason Schultz, Pam