Nothing quite illustrates the adage of “no good deed goes unpunished” better than a copyright infringement lawsuit.

Recall that three years ago, at the beginning of the pandemic, the Internet Archive (IA), best known for its “Wayback Machine” that archives Internet pages, embarked on an ambitious new project: the National Emergency Library, “a temporary collection of books that supports emergency remote teaching, research activities, independent scholarship, and intellectual stimulation while universities, schools, training centers, and libraries are closed.”

The library was stocked with some 1.4 million books, and after COVID-19 took hold, IA made all of them immediately available for free downloading, regardless of their copyright status, in light of the “unprecedented global and immediate need for access to reading and research material.” (Previously, books under copyright could be digitally “borrowed,” but only for two weeks and only by a limited number of people at any one time.)

Predictably, the holders of the copyrights on those books took issue with the project, filing suit in federal court in New York in June 2020. In a statement, a spokesman for the Author’s Guild blasted “the wholesale scanning and posting of copyrighted books without the consent of authors, and without paying a dime.”

In its defense, IA argued that it was engaging in “fair use,” a doctrine that involves whether the use of a copyrighted work is transformative, how creative the copyrighted work is, how much of the work the infringer used, and how much harm the infringing use caused.

In fact, IA’s founder and digital librarian told the New York Times that “publishers suing libraries for lending books, in this case, protected digitized versions, and while schools and libraries are closed, is not in anyone’s interest.”

And now, on March 24, three years since the start of the pandemic, and nearly three years since the publishers—specifically, Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House—filed suit, the court has ruled in their favor, finding that “each enumerated fair use factor favors the Publishers.”

Specifically, District Judge John G. Koeltl of the US District Court for the Southern District of New York carefully examined each of the prongs of IA’s fair-use defense and found them wanting.

With respect to transformation, the court held that IA did not convert the books into something new and different from the originals. With respect to the creativity of the copyrighted work, Judge Koeltl found that the 1.4 million copied books were indeed creative. With respect to how much of the work was used, it was undisputed that the entireties of the works were copied.

And finally, with respect to the harm allegedly caused by the copying, while IA presented evidence that demand for the copied works didn’t meaningfully diminish, the court held that “IA supplants the Publishers’ place” in the “thriving” e-book licensing market and “usurp[s]” the copyright holders’ sales.

In especially strident language, Judge Koeltl ruled that:

What fair use does not allow, however, is the mass reproduction and distribution of complete copyrighted works in a way that does not transform those works and that creates directly competing substitutes for the originals. Because that is what IA has done with respect to the Works in Suit, its defense of fair use fails as a matter of law.

Thus, IA will likely have to shutter its National Emergency Library and may face penalties of up to $150,000 per act of infringement—an amount that could devastate the organization. IA labeled the ruling “a blow to all libraries and the communities we serve” and vowed to “keep fighting for the traditional right of libraries to own, lend, and preserve books.” Whether it will prevail won’t be known until after its promised appeal.

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