“The publishers argued that the Internet Archive practices a form of “willful digital piracy on an industrial scale.” Judge Koeltl agreed, saying that although IA does not actually increase the number of books in circulation, “the Publishers hold exclusive publishing rights” and the IA “infringed the plaintiffs’ copyrights in 127 books (the “Works in Suit”) by scanning print copies … and lending the digital copies to users of the defendant’s website without the plaintiffs’ permission.” He says that they can only legally digitize books that are considered to be in the public domain,1 which would force them to remove more than 3.6  million copyrighted works currently on the site.  

Koeltl dismissed the Archive’s argument that their practices constitute “fair use,” which allows copying for criticism, comment, news reporting, teaching, scholarship, or research. To determine if a piece of content falls under fair use, judges consider nonprofit or educational purposes, transformation, and market effect. In his opinion, Koeltl gave lengthy explanations for why he believes IA is not fair use. Mike Masnick, the founder of Techdirt and one of the most prolific writers on fair use in the Internet age, gives Koeltl’s tortured logic the verbal flogging it deserves, arguing that the Archive’s lending is transformative, not for profit, and no more impactful to the market than the average library. But even setting aside the legal question of copyright infringement, we should still consider the destruction of the IA to be a bad thing for society. At bottom, this is a case of a cabal of powerful commercial interests using the legal system to bully a public organization that offers a superior service, completely for free, without stealing anything….”