The COVID-19 pandemic is still causing ripple effects across many industries, including libraries and higher education. In 2020, major publishing giants Hachette Book Group, HarperCollins, John Wiley & Sons and Penguin Random House came together to sue Internet Archive, a company who created a National Emergency Library during the global pandemic.

The National Emergency Library allowed users unlimited access to scanned copies of books for free. Internet Archive scanned in thousands of books and offered them free to use to the public. Notably, Internet Archive did not have an agreement in place with the publishers to digitally distribute the books. Internet Archive relied heavily on a defense to copyright infringement known as fair use and its practice of controlled digital lending - which is when a library with a print copy of a book digitizes it, holds back a print copy and lends the digitized version.

This case has re-ignited the discussion on what constitutes copyright fair use, especially in a library or academic setting. Internet Archive and its supporters saw the case as a fight for libraries to own and preserve books and to disseminate knowledge and learning democratically. However, the publishers (and many authors) believe this case is really a cut and dry copyright infringement case since Internet Archive was distributing the books without the proper permissions and without a viable fair use defense.

On Friday March 24, 2023, the federal court in New York presiding over this case ruled that Internet Archive violated U.S. copyright law when it digitized books and offered them online without permission. Internet Archive's lending operation covers 3.6 million books - 33,000 of which are published by the publishers in this case. The opinion reads: "At bottom, IA's fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book...But no case or legal principle supports that notion. Every authority points the other direction." 

This case touched on fair use as it applies to libraries and higher education and comes down clearly on the side of the publishers. Libraries and higher education institutions would be well advised to review current practices and any reliance on fair use to determine, in light of this case, if any adjustments need to be made to mitigate risks of copyright infringement.