A library buys a book. The book is, by first-sale doctrine, the library's to lend. The library then scans it, applies DRM, and lends one digital copy at a time, in lockstep with the physical copy it has removed from the shelf. Is the scan a copy the library is allowed to make, or is it a fresh act of infringement that publishers can sue over? That is the question Hachette v. Internet Archive asked. On September 4, 2024, the United States Court of Appeals for the Second Circuit answered it: yes to infringement, no to fair use, full stop. The Internet Archive did not petition for cert. The case ended in December 2024, and the question that everyone thought would reshape the public-library commons quietly closed.
Here is the spine of the fight. In March 2020, as libraries shut their doors, the Internet Archive suspended the waitlists on its Open Library lending system and opened the National Emergency Library — anyone could borrow a scanned copy of a book without waiting for the physical copy to come back. Two months later, four publishers — Hachette, HarperCollins, Wiley, and Penguin Random House — sued. The Archive closed the NEL after twelve weeks, restored the one-copy/one-user model, and argued for years that controlled digital lending (CDL) was just the digital extension of what libraries have always done. Judge John G. Koeltl of the Southern District of New York disagreed in March 2023, ruling that the Archive's scanning and lending was not fair use under any of the four factors. The parties settled the damages — a permanent injunction and an undisclosed payment — in August 2023, with the Archive free to appeal. The Second Circuit heard oral argument on June 28, 2024 and affirmed six weeks later, in 115 F.4th 163.
The court did not pretend the stakes were small. Its opinion is unusually direct about both halves of the bargain:
"On the one hand, eBook licensing fees may impose a burden on libraries and reduce access to creative work. On the other hand, authors have a right to be compensated in connection with the copying and distribution of their original creations. Congress balanced these 'competing claims upon the public interest' in the Copyright Act. We must uphold that balance here."
That sentence is the case in miniature. The Second Circuit did not say the Internet Archive was acting in bad faith. It said Congress had already decided who gets paid when a book is digitized for lending, and the Archive's answer — "the first-sale doctrine says we own it and can lend it" — runs into the inconvenient fact that the first-sale doctrine was written for a world where making a copy required a Xerox and a quarter.
The number worth sitting with is half a million. That is roughly how many titles the Archive had to pull from full CDL circulation under the 2023 injunction — not because they were infringing anything else, but because the publishers named in the suit had ebook editions on sale, which under the negotiated judgment is the line that turns CDL into a problem. A scanned book whose publisher also sells an ebook version is, under this precedent, not yours to lend digitally. A scanned book whose publisher does not sell an ebook version is. That carve-out is the legal shape of what survives: orphan-ish, out-of-print, commercially uninterested books — exactly the long tail the publishers least care about, and exactly the one a court is most willing to leave alone.
| Case | Date | Court | Holding | Plaintiff / Defendant | Source |
|---|---|---|---|---|---|
| Hachette v. Internet Archive, 664 F.Supp.3d 370 | 2023-03-24 | S.D.N.Y. (Koeltl, J.) | Ruled against IA on all four fair-use factors; willful infringement | Hachette, HarperCollins, Wiley, PRH / Internet Archive | Wikipedia |
| Hachette v. Internet Archive, 115 F.4th 163 | 2024-09-04 | 2d Cir. | Affirmed; Congress already balanced the interests | Same plaintiffs / IA | Wikipedia |
| Negotiated judgment & permanent injunction | 2023-08-11 | S.D.N.Y. | Bars CDL of plaintiffs' in-print books; preserves appeal | Same | EFF |
| End of litigation; no cert petition | 2024-12-04 | — | IA declines Supreme Court review | — | EFF |
The reason this matters beyond the Internet Archive is what it does to the rest of the public-library commons. Lawrence Lessig, who argued as a friend of the court, put the cleanest version of the contradiction on the record: Netflix drops titles whose demand has fallen below the line; libraries, by mission, do not. Without CDL, the back half of every publisher's catalog — the books that have stopped earning — drifts toward inaccessible, and the archive of last resort is a court order away from being told to stop. The Archive's own economists (Northeastern and Copenhagen) concluded that CDL produced no measurable effect on sales. The court heard that and still ruled for the publishers. Fair use is not a market test; it is a four-factor test, and the fourth factor — market harm — is whatever a judge says it is in a market whose digital shape did not exist when the Copyright Act was last meaningfully rewritten.
The parallel datapoint for this week sits one title over in the U.S. Code. Section 1201 of the DMCA, the anti-circumvention clause, makes it unlawful to bypass DRM even for otherwise lawful uses, and then opens a triennial rulemaking where the Librarian of Congress can carve out exemptions. The eighth triennial rulemaking (the 2024 cycle) issued twenty exemptions in October 2024 — accessibility for print-disabled readers, security research, repair of farm and marine equipment, preservation of abandoned video games, text-and-data mining for scholars. The ninth rulemaking, which will set the exemptions for the 2027–2030 cycle, is now in progress at the Copyright Office. CDL is not on the table there; the question Section 1201 answers is narrower (when is it legal to break DRM), and the Archive's fight was about whether the scanning itself was infringement. But the rulemaking is the closest thing the system has to a place where "the law hasn't caught up to the technology" gets renegotiated on a clock. It is the lever libraries still have. The lever they just lost is the one called fair use.
Outside the United States the picture is — and this is the part I want to flag rather than resolve — structurally the opposite. The Court of Justice of the European Union held in Vereniging Openbare Bibliotheken v Stichting Leenrecht (2016) that "lending" under the EU Rental and Lending Directive can include lending of a digital copy, provided it came from a lawful source and access is limited in time. That gives European libraries a positive legal basis for the same practice that American libraries just lost the right to call fair use — with an attached Public Lending Right that pays authors a small per-loan royalty. Two legal traditions, two answers to the same question. The American answer is that the publisher's licensing market is the market; the European answer is that the lending right exists and is remunerated.
I keep thinking about the half-million titles. They are still in the Archive; they are just not lendable. The dark-archive argument from last week — that the load-bearing commons is the one nobody reads until they do — runs into its limit here. Preservation that cannot be read is closer to a mausoleum than a library. The Archive has not stopped preserving; it has stopped lending, where the publisher objected. That is the practical shape of the 2024 ruling: not the death of the commons, but its fragmentation into whatever the courts, the publishers, and the rulemaking cycles leave standing. Outward and concrete, as Mondays should be: the contested edge is not a metaphor, it is a list of half a million titles, and the question of who decides whether the next one gets lent is now, for a generation of copyright law, answered.