INTERNET ARCHIVE▊
Institutional dossier S.D.N.Y. 1:20-cv-04160 & 1:23-cv-07133 Status: still operating
The world's library got sued from two directions at once. Four publishers took it to the Second Circuit and won — its book-scanning is not fair use. Then the major record labels came for its 78rpm archive with statutory exposure reported as high as $621 million. One case it lost on the law. The other it settled. The archive is still running.
When people want to listen to music they go to Spotify. When people want to study 78rpm sound recordings as they were originally created, they go to libraries like the Internet Archive. Both are needed. There shouldn't be conflict here.
Brewster Kahle, founder & digital librarian, responding to the Great 78 lawsuit on the Internet Archive blog (Aug 14, 2023)
We submitted our appeal to the court today to protect the core mission of libraries—preservation and access. This is a fight to keep library books available for those seeking truth in the digital age.
Brewster Kahle, remarks on filing the Hachette appellate brief, Internet Archive blog (Dec 15, 2023)
- ENTITY
- Internet Archive, San Francisco — 501(c)(3) nonprofit digital library; mission "Universal Access to All Knowledge" FACT
- PRINCIPAL
- Brewster Kahle, founder & digital librarian — the Archive's public voice, and a named individual co-defendant in the music case FACT
- THE BOOK CASE
- Hachette Book Group v. Internet Archive · Controlled Digital Lending & the National Emergency Library · lost at S.D.N.Y. (2023) and the Second Circuit (2024) FACT
- THE MUSIC CASE
- UMG Recordings et al. v. Internet Archive · the Great 78 Project · confidentially settled in 2025, no admission of liability FACT
- EXPOSURE
- The music suit named 2,749 recordings at a $150,000 statutory maximum each — reported potential damages up to ~$621M ATTRIBUTED
- STATUS
- STILL OPERATING — archive.org is live; 500,000+ books pulled from lending after the ruling
This file is not a charlatan file. The subject is a library — a real one, with a real mission, that a great many people love. It belongs in the archive anyway, because the archive keeps the record of institutions under legal fire, and this institution took two of the heaviest copyright shots of the decade in a row.
Read it honestly. On the books, the Internet Archive lost, twice, on the law. On the 78rpm records, it settled before a jury could set a number. Both sides get the microphone at full strength. The publishers and the labels have the rulings and the statute. The Archive has the mission, the fair-use argument, and a real question about what preservation costs when the meter runs at $150,000 a track. You decide.
the drama timeline
ACT I — THE LIBRARY AND THE PANDEMIC (2020)
A library that scans the books it owns and lends the scans, one copy out per copy held. For years, an uneasy peace. Then the schools close, and the library takes the fences down.
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MAR 2020
The National Emergency Library
As the pandemic shutters schools and libraries, the Internet Archive suspends the one-to-one owned-to-loaned cap on its digitized books and opens the National Emergency Library, letting many readers borrow the same scanned title at once. The Archive frames it as emergency access; publishers frame it as mass distribution of their catalog.
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JUN 2020
Four publishers sue
Hachette, HarperCollins, Penguin Random House, and John Wiley & Sons file suit in the Southern District of New York over 127 copyrighted works, calling the lending program mass copyright infringement. The Archive reinstates its one-to-one cap the same month and closes the emergency library early.
ACT II — THE BOOK CASE (2023–2024)
The fair-use question that libraries had circled for a decade finally reaches a bench. Twice. Both times the answer is the same word.
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MAR 2023
The district court rules against the Archive
Judge John G. Koeltl grants summary judgment for the publishers, holding that scanning purchased print books and lending the digital copies — even one-out-per-owned — is not fair use. The parties later narrow the case to books the publishers offer as commercial ebooks; the Archive appeals.
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SEP 4, 2024
The Second Circuit affirms
A unanimous Second Circuit panel affirms: the Archive's copying is not transformative — "Changing the medium of a work," the court writes, "is a derivative use rather than a transformative one" — and its digital books serve "the same exact purpose as the originals," harming the publishers' market. Notably, the panel rejects the lower court's finding that the use was commercial, agreeing with the Archive that a nonprofit soliciting donations is not thereby commercial — but holds the lending unlawful anyway.
The one point the Archive won on appeal — that a donation button does not make a library a business — is a sentence worth keeping. It lost the war and won that clause.
-
DEC 4, 2024
The Archive stands down
The Archive announces it will not petition the Supreme Court: "While we are deeply disappointed with the Second Circuit's opinion in Hachette v. Internet Archive, the Internet Archive has decided not to pursue Supreme Court review." Over 500,000 books come out of lending on archive.org and openlibrary.org. The book case is over.
ACT III — THE 78s (2023–2025)
Before the book appeal is even decided, a second front opens — this time over shellac records a century old, and this time with the founder's name in the caption.
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AUG 2023
The labels sue over the Great 78 Project
Six labels — UMG Recordings, Capitol Records, Concord Bicycle Assets, CMGI Recorded Music Assets, Sony Music Entertainment, and Arista Music — sue in the Southern District of New York over the Great 78 Project, the Archive's digitization of fragile 78rpm shellac discs. The complaint names the Internet Archive, founder Brewster Kahle, the Kahle/Austin Foundation, and audio-preservation vendor George Blood, L.P. as defendants, alleges the pre-1972 recordings were "willfully" copied, and seeks statutory damages "of up to $150,000 for each protected sound recording infringed."
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2023–2025
The number nobody wanted a jury to reach
The suit focused on 2,749 recordings, many by legacy acts — Billie Holiday, Louis Armstrong. At the $150,000 statutory maximum, the exposure was enormous: Rolling Stone put the initial figure around $412 million in 2023 and reported the potential damages "could have been as high as $621 million" by the time of settlement. For a nonprofit library, either number is existential.
The statutory-damages regime does not care whether the defendant is a pirate or a preservationist. It multiplies. That is the whole drama of the music case: not whether the Archive would lose, but what losing would cost.
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SEP 2025
Confidential settlement
In September 2025 the parties settle before trial. The Archive's statement: "The parties have reached a confidential resolution of all claims and will have no further public comment on this matter." The RIAA says the same. Terms are undisclosed; no court found liability and no party admitted any. The case is dismissed the following month.
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EPILOGUE
Still operating
archive.org is live. The Wayback Machine still runs; the 78rpm collection still exists; the book-lending program is shrunk to the titles the ruling allows. The library that got sued from two directions is still, as of this writing, a library.
both sides, on the record
The rulings are not in dispute. The Southern District of New York (2023) and a unanimous Second Circuit (2024) both held the Archive's book-scanning is not fair use: not transformative, because "changing the medium of a work is a derivative use," and market-harming, because the scans "serve the same exact purpose as the originals" [1] [2].
The publishers' interest is a legal right, not a mood: the exclusive right to prepare and license derivative works, including ebooks. The court called it "self-evident" that a free full-copy substitute would harm that market [9].
The music case carried real exposure. The labels' complaint alleged willful infringement of pre-1972 recordings and invoked the $150,000 statutory maximum per recording — across 2,749 tracks, a sum reported up to $621 million [4] [11]. The Archive settled rather than test that number at trial.
The Archive's position, in its own words: controlled digital lending is "about strengthening democracy by creating informed global citizens"; the appeal was "a fight to keep library books available for those seeking truth in the digital age"; on the 78s, "when people want to study 78rpm sound recordings… they go to libraries" [5] [6].
It won a real point on appeal: the Second Circuit rejected the district court's finding that the Archive's use was commercial, agreeing a nonprofit soliciting donations is not thereby a business [10]. And it acted like a library throughout — one-out-per-owned lending, physical originals held, an early end to the emergency program.
The settlement is not an adjudication. The music case ended confidentially with no court finding of liability and no admission by any party [11]. The Great 78 recordings are century-old shellac the labels do not sell in that form; the Archive's argument that preservation of obsolete media is a distinct, non-substituting use was never ruled on [5]. Archivists' fear is concrete: if statutory damages can price a preservation project into oblivion, the chilling effect reaches every library.
YOU DECIDE
Scoped to the claims. The claim "controlled digital lending of scanned books is fair use" lost, cleanly, at two levels of the federal courts — that is settled law in the Second Circuit now, not opinion. The claim "the Great 78 Project infringed the labels' recordings" was never adjudicated: it ended in a confidential settlement with no admission, so on that record nobody won and nobody was found liable.
Weigh the costly signals. The publishers paid to litigate a decade-old ambiguity to a precedent and got one. The Archive paid in books — 500,000 pulled from lending — and, on the music side, paid an undisclosed sum to keep a jury away from a $150,000-times-2,749 multiplication. The open question the courts did not answer: what happens to preservation when the least-favorable reading of copyright law can bankrupt a library for saving a Billie Holiday record nobody else is selling.
The archive does not judge. The archive merely keeps the tape running.
evidence locker
PRIMARY RECORD — DOCKETS, OPINION, COMPLAINT
Hachette Book Group v. Internet Archive, S.D.N.Y. 1:20-cv-04160 (CourtListener docket) — Judge John G. Koeltl FACT — the book case and the 2023 summary-judgment ruling, on the public docket.
courtlistener.com/docket/17211300/… Hachette Book Group v. Internet Archive, No. 23-1260 (2d Cir. Sep 4, 2024) — the appellate opinion (Justia) FACT — the affirmance; "changing the medium… is a derivative use rather than a transformative one." (Justia bot-blocks automated fetches; the opinion is live.)
law.justia.com/cases/federal/appellate-courts/ca2/23-1260/… UMG Recordings et al. v. Internet Archive, S.D.N.Y. 1:23-cv-07133 (CourtListener docket) FACT — the Great 78 music case; caption names Internet Archive, Brewster Kahle, the Kahle/Austin Foundation, and George Blood, L.P.
courtlistener.com/docket/67687248/… The Great 78 complaint (PDF, S.D.N.Y. 23-cv-7133) FACT — "willfully" copied pre-1972 recordings; statutory damages "of up to $150,000 for each protected sound recording infringed."
storage.courtlistener.com/recap/….1.0.pdf
THE SUBJECT'S OWN CHANNELS — THE ARCHIVE, UNEDITED
Internet Archive blog — response to the recording-industry lawsuit (Aug 14, 2023) SELF-PUBLISHED — Kahle's "Spotify vs. libraries" statement; the Archive's framing of the 78 suit.
blog.archive.org/2023/08/14/…
PRESS & ANALYSIS
Venable LLP — "Second Circuit Holds That the Internet Archive's Controlled Digital Book Lending Is Not a Fair Use" (Sep 2024) ATTRIBUTED — the opinion quoted verbatim; the 127 works; the four-factor analysis.
venable.com/insights/publications/2024/09/… Authors Alliance — "Second Circuit Court of Appeals Rules Against Internet Archive" (Sep 5, 2024) ATTRIBUTED — the affirmance, and the panel's rejection of the district court's commercial-use finding.
authorsalliance.org/2024/09/05/… Rolling Stone — "Internet Archive, Major Labels Settle Great 78 Copyright Lawsuit" (Sep 2025) ATTRIBUTED — the 2,749 recordings; the confidential settlement; the "up to $621 million" figure.
rollingstone.com/music/music-news/…-1235427887/ Publishers Weekly — "Internet Archive Copyright Case Ends Without Supreme Court Review" (Dec 2024) ATTRIBUTED — the end of the book case and the 500,000-book removal.
publishersweekly.com/…/96657-…
The standard. Everything above is sourced to federal dockets, an appellate opinion, the labels' own complaint, the Archive's own blog, and named legal and press reporting. The rulings and the filings are stated as facts. Damages figures and settlement status are attributed to named reporting and dated. The plaintiffs' "willful" characterization is the complaint's, quoted as theirs. The Archive's defense — its mission, the point it won on appeal, and the confidential settlement with no admission of liability — is presented at full strength. Brewster Kahle appears both as the Archive's public voice and as a named individual co-defendant in the music case, each stated as documented. No motive is asserted against any party; this is not a fraud file. The burden of proof is on us, not the subject. If it couldn't survive a defamation challenge, it wouldn't be on this page.