Appeals Court Rules Nonprofit Can’t Scan Books to Internet

The Thurgood Marshall United States Courthouse, which hears cases from the United States District Court for the Southern District of New York and United States Court of Appeals for the Second Circuit, stands in Lower Manhattan, New York, on Jan. 18, 2019. Drew Angerer/Getty Images

A federal appeals court has ruled that a nonprofit violated copyright law when it made e-books, made from scans of printed books, available for free.

A federal judge in 2023 ruled against the Internet Archive, finding its digital free library violated the copyrights of 127 books, including “The Bell” Jar by Sylvia Plath. The nonprofit appealed.

“This appeal presents the following question,” U.S. Circuit Judge Beth Robinson wrote in the new ruling, released on Sept. 4.

“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.”

The Copyright Act contains an exception for fair use of material, which is predicated on somehow transforming the content.

The Internet Archive has since 2011, with partners, taken print books, scanned them, and then made the e-books available for free.

The Internet Archive (IA) argued its use is transformative because its digital library makes lending “more convenient and efficient” and because it only lets one person borrow an e-book at a time.

Publishers that sued the nonprofit told the court that the library “does nothing ‘more than repackage or republish’ the works.”

The appeals court sided with the publishers, ruling that the library does not meet the transformative bar for the Copyright Act exception.

“IA creates digital copies of the works and distributes those copies to its users in full, for free,” Robinson said.

“Its digital copies do not provide criticism, commentary, or information about the originals. Nor do they ‘add ... something new, with a further purpose or different character, altering the [originals] with new expression, meaning or message.’ Instead, IA’s digital books serve the same exact purpose as the originals: making authors’ works available to read,” she added, quoting from a previous court ruling.

Chris Freeland, director of library services at the IA, said in a statement that the nonprofit was disappointed in the decision.

“We are reviewing the court’s opinion and will continue to defend the rights of libraries to own, lend, and preserve books,” Freeland said.

The nonprofit could take the case to the U.S. Supreme Court.

Maria A. Pallante, president and CEO of the Association of American Publishers, said in a statement that the ruling “upholds the rights of authors and publishers to license and be compensated for their books and other creative works and reminds us in no uncertain terms that infringement is both costly and antithetical to the public interest.”