The library has been discussing new ways to handle our discards. A senior staff member of a very significant local library told us recently that they donate their discards to the Internet Archive. A staff member here expressed concerns with IA scanning and making publicly available on their website copyrighted materials, and concern for liability on our part for contributing to potentially illegal activity. The staff member wondered if only materials free from copyright concerns should be donated. At this point we are not looking to create a digital library as IA has done for many organizations, but just simply to donate the material for them to use as they see fit in hopes of the material being used for the greater good. Should we have any concerns with donating our discards to IA? Thanks for helping us sort-out this concern.
Because it would muddy the core element of this question (Should we have any concerns with donating our discards to [Internet Archive]?), this answer is not going to address the various legal and regulatory requirements different libraries may have when it comes to disposing of discarded books.
With that out of the way, we can dive right into the member’s concerns about liability “for contributing to potentially illegal activity.”
Internet Archive describes its work this way:
“Because we are a library, we pay special attention to books. Not everyone has access to a public or academic library with a good collection, so to provide universal access we need to provide digital versions of books. We began a program to digitize books in 2005 and today we scan 4,300 books per day in 18 locations around the world. Books published prior to 1927 are available for download, and hundreds of thousands of modern books can be borrowed through our Open Library site. One of the Internet Archive's missions is to serve people who have difficulty interacting with physical books, so most of our digitized books are available to people with print disabilities (learn about access here).”
As the member’s question alludes to, some of the content on the “Open Library” has brought accusations of copyright infringement, which Internet Archive has defended under the “controlled digital lending” theory of “fair use”.
The most notorious case is Hachette Book Grp. Inv. V. Internet Archive, decided by the U.S. District Court for the Southern District of New York on March 24, 2023, which found that when not limited to use for search functions or adaptive copies, certain scanning and (controlled digital) lending of books still protected by copyright is not defensible as “fair use.”
The decision was a blow to Internet Archive, which is committed to not only making content digitally available but to decoupling that access from the commercial exploitation of user identity. For an elegant an annotated discussion of this topic, review the amicus brief of Center for Democracy & Technology, Library Freedom Project, and Public Knowledge.
The case is now being appealed, with allies showing up on both “sides.”
With all that going on, Internet Archive is still going strong and still accepting donations. The question that this member asks is: if my organization donates our discarded hard copies to IA, can we also get implicated in alleged infringement?
Bearing in mind that anyone can be sued by anyone for anything at any time, the answer is otherwise: no.
The basis for this answer is Section 109 of the Copyright Act, which provides that “the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.”
This “first sale” doctrine, as it is referred to, does not cease to operate when a party knows or may know that the purchaser or recipient has been found to infringe copyright in the past. In addition, as the ruling in Hatchett points out, there are a number of legitimate uses Internet Archive can make of scanned versions of donated copies.
While it is true that there can be “joint liability” or “vicarious liability” for every person in a “chain of infringement,” providing copies in a manner covered by Section 109 (i.e. selling or donating a lawfully obtained copy) is not one of them.
On the topic of donating to Internet Archive, I will also say: because Internet Archive is attempting to break new legal ground, supporting them is controversial in some circles, while it is an almost sacred duty in some other circles.  So, aside from considerations of liability (which, so long as the donations are hard copies, will not pose a concern), it makes sense to review the status of the cases, and decide where your organization stands.
 For example, Education Law 260(12) requires that public libraries “… offer to donate such books or materials to a not-for-profit corporation or political subdivision located within the area of the library system or offer to sell such books or materials to the general public.” And different academic, school, and court libraries will have their own rules, regulations, bylaws, and policies governing donations.
 Shiva Stella, Public Knowledge Joins Amicus Brief Defending Controlled Digital Lending and Consumer Privacy, Public Knowledge (December 21, 2023), https://publicknowledge.org/public-knowledge-joins-amicus-brief-defending-controlled-digital-lending-and-consumer-privacy/.
 I like the sweetly phrased donation notice here as of 12/27/2023: https://blog.archive.org/2021/01/05/downsizing-in-2021-donate-your-discarded-books-and-media-to-the-internet-archive/)
 I am leaving digital content out of this because most digital copies come with “terms & conditions” that bar transferal of the content… not a tactic I endorse, but one that has been found enforceable.
 Specifically, the concept of “controlled digital lending.”
 Publishing and content-monetization circles.
 Library and privacy advocate circles.