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Intellectual PropertyThe Intellectual Property StrategistCopyrightsFeatures

Internet Archive’s Decision Not to Appeal Second Circuit’s Fair Use Ruling Could Lead to More Litigation As Issue Remains Unsettled

By Catherine Nyarady and Crystal Parker
March 01, 2025

On Sept. 4, 2024, the United States Court of Appeals for the Second Circuit affirmed a district court decision that a defendant nonprofit’s copying of physical books and distributing them for free online did not constitute “fair use.” See, Hachette Book Group, Inc. v. Internet Archive, 115 F. 4th 163, 174-75 (2d Cir. 2024).

The plaintiffs, comprising a group of publishers (the Publishers), sued defendant Internet Archive, a San Francisco-based nonprofit, for infringing the Publishers’ copyrights for certain books, with the defendants responding that their copying and distribution activities amounted to transformative fair use. See, id. at 174, 177.

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