So as previously discussed here three years ago and two years ago, on March 24 the US District Court for the Southern District of New York found that the Internet Archive’s controlled digital lending fails copyright law. Half of my social media feed on this subject filled immediately with people warning that publishers want to kill libraries and this judgment is a dangerous step limiting access to information; the other half is going “They’re stealing from authors. Copyright!” Both of these things can be true. And incomplete.
To recap: in 2006 the Internet Archive set up the Open Library to offer access to digitized books under “controlled digital lending”. The system allows each book to be “out” on “loan” to only one person at a time, with waiting lists for popular titles. In a white paper, lawyers David R. Hansen and Kyle K. Courtney call this “format shifting” and say that because the system replicates library lending it is fair use. Also germane: the Archive points to a 2007 California decision that it is in fact a library. Other countries may beg to differ.
When public libraries closed at the beginning of the covid19 pandemic, the Internet Archive announced the National Emergency Library, which suspended the one-copy-at-a-time rule and scrubbed the waiting lists so anyone could borrow any book at any time. The resulting publicity was the first time many people had heard of the Open Library, although authors had already complained. Hachette Book Group, Penguin Random House, HarperCollins, and Wiley filed suit. Shortly afterwards, the Archive shut down the National Emergency Library. The Open Library continues, and the Archive will appeal the judge’s ruling.
On the they’re-killing-the-libraries side: Mike Masnick and Fight for the Future. At Walled Culture, Glyn Moody argues that sharing ebooks helps sell paid copies. Many authors agree with the publishers that their living is at risk; a group of exceptions including Neil Gaiman, Naomi Klein, and Cory Doctorow, have published an open letter defending the Archive.
At Vice, Claire Woodstock lays out some of the economics of library ebook licenses, which eat up budgets but leave libraries vulnerable and empty-shelved when a service is withdrawn. She also notes that the Internet Archive digitizes physical copies it buys or receives as donations, and does not pay for ebook licenses.
Brief digression back to 1996, when Pamela Samuelson warned of the coming copyright battles in Wired. Many of its key points have since either been enshrined into law, such as circumventing copy protection; others, such as requiring Internet Service Providers to prevent users from uploading copyrighted material, remain in play today. Number three on her copyright maximalists’ wish listeliminating first-sale rights for digitally transmitted documents. This is the doctrine that enables libraries to lend books.
It is therefore entirely believable that commercial publishers believe that every library loan is a missed sale. Outside the US, many countries have a public lending right that pays royalties on loans for that sort of reason. The Internet Archive doesn’t pay those, either.
It surely isn’t facing the headwinds public libraries are. In the UK, years of austerity have shrunk library budgets and therefore their numbers and opening hours. In the US, libraries are fighting against book bans; in Missouri, the Republican-controlled legislature voted to defund the state’s libraries entirely, apparently in retaliation.
At her blog, librarian and consultant Karen Coyle, who has thought for decades about the future of libraries, takes three postings to consider the case. First, she offers a backgrounder, agreeing that the Archive’s losing on appeal could bring consequences for other libraries’ digital lending. In the second, she teases out the differences between academic/research libraries and public libraries and between research and reading. While journals and research materials are generally available in electronic format, centuries of books are not, and scanned books (like those the Archive offers) are a poor reading experience compared to modern publisher-created ebooks. These distinctions are crucial to her third posting, which traces the origins of controlled digital lending.
As initially conceived by Michelle M. Wu in a 2011 paper for Law Library Journal, controlled digital lending was a suggestion that law libraries could, either singly or in groups, buy a hard copy for their holdings and then circulate a digitized copy, similar to an Inter-Library Loan. Law libraries serve limited communities, and their comparatively modest holdings have a known but limited market.
By contrast, the Archive gives global access to millions of books it has scanned. In court, it argued that the availability of popular commercial books on its site has not harmed publishers’ revenues. The judge disagreed: the “alleged benefits” of access could not outweigh the market harm to the four publishers who brought the suit. This view entirely devalues the societal role libraries play, and Coyle, like many others, is dismayed that the judge saw the case purely in terms of its effect on the commercial market.
The question I’m left with is this: is the Open Library a library or a disruptor? If these were businesses, it would obviously be the latter: it avoids many of the costs of local competitors, and asks forgiveness not permission. As things are, it seems to be both: it’s a library for users, but a disruptor to some publishers, some authors, and potentially the world’s libraries. The judge’s ruling captures none of this nuance.
Illustrations: 19th century rendering of the Great Library of Alexandria (via Wikimedia).
Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Follow on Mastodon or Twitter.
The claim that, “The system allows each book to be ‘out’ on ‘loan’ to only one person at a time” is demonstrably false, and part of the judge’s opinion was a factual finding that this claim was not true:
According to the judge’s decision, as quoited here:
https://nwu.org/federal-judge-rules-internet-archive-infringes-authors-and-publishers-copyright/
“Nor does IA’s promise not to lend simultaneously its lawfully acquired print copies and its unauthorized reproductions help its case. As an initial matter, IA has not kept its promise…. IA concedes that it has no way of verifying whether Partner Libraries remove their physical copies from circulation after partnering with IA. To the contrary, IA knows that some Partner Libraries do not remove the physical books from their shelves, and even if a Partner Library puts a physical book into a non-circulating reference collection, it could be read in the library while the ebook equivalent is checked out. Id. IA also does not inform Partner Libraries when an ebook in its collection is checked out, and Partner Libraries do not tell IA when their physical copies are circulating.”
The claim that, “in 2006 the Internet Archive set up the Open Library to offer access to digitized books under ‘controlled digital lending'” is also false. The goal, as Brewster Kahle had presented it starting years earlier, has always been “One Web Page for Every Book”, which was implemented as “One Web Page for Every Page of Every Book”, with a unique, persistent, URL and no restrictions on access.
“Controlled Digital Lending” was a cover story developed years later to distract attention from “One Web Page for Every Page of Every Book” (even though that remained the primary form of distribution of the scanned images of pages of books) and to provide a veneer of legality for what the Internet Archive was already doing.
Rather than trying to get laws and international treaties changed to legalize a practice that it thought would be socially useful, the Internet just started doing it *and lying about what it was doing*.
(FWIW, there’s a precedent in the Internet Archive having broken its promises to honor robots.txt, later claiming implausibly that it didn’t think robot exclusion directives were intended to exclude the Internet Archive even when they were specifically directed to IA’s crawler rather than to all robots.)
Here’s more on what the Internet Archive has *actually* been doing with book scans:
https://nwu.org/what-is-the-internet-archive-doing-with-our-books/
As for the court’s decision, it was almost inevitable — given that the only parties to the lawsuit Internet Archive and print publishers, but not writers, illustrators, or photographers whose work has been included in printed books — that authors’ interests were elided from the arguments by *both* parties, and from the court’s decision.
As you note, the Internet Archive argued that “the availability of popular commercial books on its site has not harmed publishers’ revenues”. But the Internet Archive has always claimed that it is primarily interested in distributing copies of older and out-of-print books. Rights to distribution of those works in digital formats typically were never assigned to print publishers (under older or more limited contracts, especially for licensing of illustrations and photos), have reverted to authors, or are revertable on demand of the authors.
The real issue is thus the impact on *authors’* revenues from new digital uses of works in their personal backlists previously published in print form. Authors are doing much more to monetize works in their print backlists than are print publishers, and those revenues are increasingly significant for many writers, as they have long been for re-use of stock photos and images.
But none of this has been acknowledged by the Internet Archive, which continues to attack the straw man of print publishers as a pretext for infringing authors’, not publishers’, backlists rights, while ignoring authors’ appeal for dialogue about licensing of those rights by authors to libraries:
https://nwu.org/book-division/cdl/appeal/
Thanks for the nuance in your reporting an analysis of this issue.