Hachette v. Internet Archive

Shortly before oral arguments, the Internet Archive held a press conference with comments from several people who implied that the issues in this case were much broader than the 127 books specifically named in the suit.[10] All presenters agreed that book publishers need to make money to pay their expenses including authors. The question is whether the National Emergency Library (NEL) actually harmed the publishers.

Lila Bailey, Senior Policy Counsel for the Internet Archive,[11] noted that:

In the past, publishers stood against microfilm and photocopiers, crying harm. They said they would be harmed by interlibrary loan. They lobbied for decades against libraries being allowed to provide access for the blind and print disabled. They were wrong. It took years, but eventually, the law affirmed each of these things, and the public benefitted. With this lawsuit, publishers have repeated those same claims of massive harm from controlled digital lending. ... When asked under oath, their own executives admitted this. ... [They even] instructed their own 950 dollar per hour expert not to even try to measure economic harm. ... On the other hand, when we invited economists from Northeastern University and the University of Copenhagen to look at the sales and library lending data produced in this case, they came to a singular conclusion: The Internet Archive’s digital lending had no measurable effect on the market whatsoever.[12]

Bailey's conclusion was supported by other speakers.[13][14][15]

Harvard Law School Professor Lawrence Lessig said that book publishers need to make a profit to serve the public, but the material available to the public should not be limited to what commercial enterprises find profitable. Netflix, for example, offers subscribers access to thousands of movies and television shows but routinely stops offering content for which the demand is too low. That doesn't happen with libraries. Without controlled digital lending, out-of-print books become essentially unavailable to the vast majority of humanity. "We need access to our past, not just the part of our past that is economically or commercially viable."[16]

An expert report filed with the court by Northeastern Econ Prof. Imke Reimers also reported that "sales in the first five years after an edition’s publication account for up to 90% of lifetime sales."[17]

On the other side, University of Chicago computer science professor Ian Foster reported that the Internet Archive's actual CDL practices sometimes violated their claims, lending out more copies than they physically had.[18]

While Judge John G. Koeltl issued a summary judgment in favor of the plaintiffs and against the defendant, he did not assess damages. Instead, he directed the parties to brief the court on how they thought the case should be resolved in a way that comports with the judge's decision that the National Emergency Library was not fair use.[19]

Internet Archive founder Brewster Kahle declared their intention to appeal the ruling,[2] but seems not to have done so while the parties continue to negotiate to try to agree on a procedure to determine the judgment to be entered in this case. The deadline for submitting such a procedure has been extended several times.[20] On July 28 Judge Keoltl granted another extension of the deadline to August 11 but added, "No further extensions."[21]

On August 11, 2023, the parties reached a negotiated judgment. The agreement prescribes a permanent injunction against the Internet Archive preventing it from distributing the plaintiffs' books as well as an undisclosed payment to the plaintiffs. The agreement also preserves the right for the Internet Archive to appeal the previous ruling.[22] The Internet Archive filed a notice on September 11, 2023, that it is appealing the ruling to the United States Court of Appeals for the Second Circuit.[23]