https://ww3.ca2.uscourts.gov/decisions/isysquery/797361df-8d39-498e-b632-17c14ef56dad/1/doc/23-1260_opn.pdf
IA is still operating under the misunderstanding that the US is not just several large corporations in a trench coat.
I'll share what a Harvard professor and copyright lawyer sent me in an email:
I write with a gloomy update for the Hachette v. Internet Archive appeal in the 2nd Circuit Court of Appeals: The court affirmed the lower court's decision about CDL, and ruled that Internet Archive's Open Libraires program was NOT a fair use.
One shining moment though, was that the court ruled that a "Donate Now" button does not indicate "commercial use" for purposes of the fair use argument. (Phew!)
There is more to unpack here, but we will be hosting a series of CFR talks in the coming weeks to discuss the decision and it's implications.
And somehow wikileaks is still up with terabytes of classified information.
Maybe IA needs to become a 'journalist'
Internet Archive creates digital copies of print books and posts those copies on its website where users may access them in full, for free, in a service it calls the “Free Digital Library.” Other than a period in 2020, Internet Archive has maintained a one-to-one owned-to-loaned ratio for its digital books: Initially, it allowed only as many concurrent “checkouts” of a digital book as it has physical copies in its possession. Subsequently, Internet Archive expanded its Free Digital Library to include other libraries, thereby counting the number of physical copies of a book possessed by those libraries toward the total number of digital copies it makes available at any given time.
This appeal presents the following question: Is it “fair use” for a nonprofit organization to scan copyright-protected print books in their entirety, and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors? Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no. We therefore AFFIRM.
Basically, there isn't an intrinsic right under US fair use doctrine to take a print book, scan it, and then lend digital copies of the print book.
My impression, from what little I've read in the past on this, is that this was probably going to be the expected outcome.
And while I haven't closely-monitored the case, and there are probably precedent issues that are interesting for various parties, my gut reaction is that I kind of wish that archive.org weren't doing these fights. The problem I have is that they're basically an indispensible, one-of-a-kind resource for recording the state of webpages at some point in time via their Wayback Machine service. They are pretty widely used as the way to cite a page on the Web.
What I worry about is that they're going to get into some huge fight over copyright on some not-directly-related issue, like print books or something, and then someone is going to sue them and get a ton of damages and it's going to wipe out that other, critical aspect of their operations...like, some random publisher will get ownership of archive.org and all of their data and logs and services and whatnot.
I agree strongly with your gut reaction. I personally use it as the archive of record whenever I digitize some media that would otherwise be lost. I use it when trying to establish how something looked in the past. I don't need IA to go out and pick losing fights with publishers at the expense of the excellent services they already provide.
It should be noted that if you want digital book loans Libby is fine.