van Gerven Oei, V. W. J., & Joy, E. A. F. (2023). Book Bans Attack the LGBTQ+ Community, Open Access Is Part of Our Defense. Punctum Books. https://doi.org/10.21428/ae6a44a6.8634dbb0
“Through several lawsuits, Danish publishers tried to send a clear message: educating oneself through pirated textbooks is illegal. This message has thus far failed to make an impact. New research published by the Rights Alliance shows that more than half of all students find it acceptable to use pirated books. Prison threats are not much of a deterrent but they are willing to change if prices drop significantly.”
“The publishers argued that the Internet Archive practices a form of “willful digital piracy on an industrial scale.” Judge Koeltl agreed, saying that although IA does not actually increase the number of books in circulation, “the Publishers hold exclusive publishing rights” and the IA “infringed the plaintiffs’ copyrights in 127 books (the “Works in Suit”) by scanning print copies … and lending the digital copies to users of the defendant’s website without the plaintiffs’ permission.” He says that they can only legally digitize books that are considered to be in the public domain,1 which would force them to remove more than 3.6 million copyrighted works currently on the site.
Koeltl dismissed the Archive’s argument that their practices constitute “fair use,” which allows copying for criticism, comment, news reporting, teaching, scholarship, or research. To determine if a piece of content falls under fair use, judges consider nonprofit or educational purposes, transformation, and market effect. In his opinion, Koeltl gave lengthy explanations for why he believes IA is not fair use. Mike Masnick, the founder of Techdirt and one of the most prolific writers on fair use in the Internet age, gives Koeltl’s tortured logic the verbal flogging it deserves, arguing that the Archive’s lending is transformative, not for profit, and no more impactful to the market than the average library. But even setting aside the legal question of copyright infringement, we should still consider the destruction of the IA to be a bad thing for society. At bottom, this is a case of a cabal of powerful commercial interests using the legal system to bully a public organization that offers a superior service, completely for free, without stealing anything….”
“Ostensibly, publishers and libraries ought to be on the same side: libraries aim to advance learning by providing free and open access to information; publishing literally means to disseminate to the public. Big publishers suing a digital library for furthering this common mission—during an unprecedented assault on libraries’ purpose and function—is a weird look. It’s also unclear what it actually does for writers. Most authors—some estimates say up to 70 percent—don’t earn royalties beyond their book advances and will never have the luxury of worrying about income from the sale of their works in digital formats. The funds under dispute, by and large, go straight back to the publishers.
This situation leaves writers awkwardly caught in the middle. Supporting libraries isn’t just an abstract feel-good principle: it can also have a material effect on a book’s fate. Libraries feature titles, offer programming, and choose how many copies to order. At the same time, writing is a financially precarious enterprise. The prospect of a library buying one copy of your book, scanning it, and lending it out ad infinitum is, admittedly, horrifying. But the Internet Archive decision doesn’t just prevent that outcome—it may also affect libraries’ rights to lend single scanned copies of books that they have already purchased….”
“While Judge John G. Koeltl’s opinion addressed many issues, all his reasoning was based on one assumption: that copyright primarily is about authors’ and publishers’ right to profit. Despite the pervasiveness of this belief, the history of copyright tells us something different….
In the Hachette case, a library that has purchased a copy of a print book digitizes it and lends the e-copy (that’s what CDL means) in place of the paper-and-ink original. The only thing that has changed is the book’s format. The change in format allows the buyer (library) to more effectively use the content it has purchased. Copyright protects a work—not a format—yet the justification used to stop CDL appears to be that the copyright owner has the right to profit repeatedly from the sale of the same content in a specific format to the same buyer, even if the buyer only ever needs one copy and already owns one copy.
Historically, copyright was intended to facilitate the efficient consumption and use of information, not to stand in its way. Libraries remain a critical part of the intended ecosystem, both by paying authors for the number of copies they use and by providing access to borrowers who cannot afford to purchase a book themselves. The weaponization of copyright to artificially limit technology’s reach where it would otherwise enable the buyer to use the work as intended when they bought it hurts all of us—and undermines the very purpose of copyright.”
“In 2016, the Court of Justice of the European Union issued an important ruling, Judgment C-174/15, in response to a question from the Court of First Instance of The Hague on the use of e-books by libraries. The judgment, among other things, states: “There is no decisive reason to exclude, in any event, the lending of digital copies and intangible objects from the scope of Directive 2006/115 [the Rental and Lending Directive].“
Especially in the proposals of Advocate General Maciej Szpunar, we find an excellent rationale: “Without the privileges which flow from a derogation from the exclusive lending right, libraries are therefore in danger of no longer being able to perpetuate, in the digital environment, the role which was always theirs in the era of printed books.“
As this shows, in the legal world, researchers, educators, and citizens recognize that the models for publishing and making knowledge and culture available in the new digital environment are problematic and systematically hinder people’s access to knowledge. Ultimately we are heading toward an luxury model of access to knowledge, which only those who can pay will access. For many, the only way out risks being either to give up, or less legitimate means.
This should be a political priority. There’s a great debate about fake news, misinformation, and manipulation and how these issues can be addressed. But at the same time, the sources that can be used by public institutions (such as libraries) come with prohibitive cost and technological limitations. And herein lie crucial issues of democracy that politicians often overlook. During the pandemic, the need for scientists to immediately access data and information, studies, and research, to better address the situation and ultimately save more lives became apparent. The need for democratic participation in knowledge and culture becomes imperative.
Policymakers must move immediately towards adopting rules and practices that ensure that libraries can purchase, preserve and lend electronic and digital books while respecting authors’ rights, as they do for print publications. We need to create a democratic model of access to knowledge that serves people and societies.”
“Increasingly, the future of the Internet Archive looks under threat. What the four publishers are demanding and seem set legally to enforce is, according to Kahle, the destruction of around ‘4 million digitised files… This would be a book burning on the scale of the Library of Alexandria… If digital learners have no access to millions of books, aren’t they effectively disappeared?’ …
‘In electronic form they can change all books in all libraries all at once and irreversibly without permission,’ says Kahle. ‘This is dangerous. It is not hypothetical, it is happening.’ With the future of genuine libraries looking increasingly shaky (nearly 800 have closed down in Britain alone in the past decade) and digital borrowing correspondingly on the rise, this licensing scheme has chilling implications for readers in search of an undoctored text. Also for a reading future in which their data is not open to being harvested and every turn of a page not captured by the big corporations.”
From Google’s English: “Finally, in 2023, the Federal Constitutional Court wants to decide in the dispute over the right of secondary publication. The core question is whether scientists can be required to publish their articles freely accessible a second time after twelve months. What makes the regulation so offensive that law professors complained about it? …
In the open letter, the new statutes are described as “legally encroaching”, as a “violation of the fundamental right to academic freedom” and as “a violation of the guarantee of intellectual property”. Although one is “not against the idea of ??open access itself”, as the letter says literally, “but against the path taken by the university of converting the possibility of secondary publication into a compulsory instrument that is discredited in this way.” The new The regulation is therefore unanimously ignored by the professors of the law faculty. They would not republish their publications in the Open Access repository of the University of Konstanz….”
“That decision now looks set to have broad consequences. The four publishers alleged that the Internet Archive had engaged in “willful mass copyright infringement” that violated publishers’ intellectual property and cut into their profits — not only with the lockdown library but also its usual lending practices. Though Internet Archive argued it was legally allowed to lend out the copies under the fair use doctrine, U.S. District Court Jude John G. Koeltl ultimately sided with the publishers. “Although [Internet Archive] has the right to lend print books it lawfully acquired, it does not have the right to scan those books and lend the digital copies en masse,” Koeltl said in his opinion.
Now that the dust has settled, how are those on both sides of the debate making sense of Koeltl’s ruling and its reverberations for the publishing and literary world as a whole?…”
“If civilization ever falls to a zombie apocalypse or nuclear Armageddon, we will need to have preserved centuries of accumulated practical knowledge to rise again. And if humanity should go extinct, leaving nothing but our legacy, the alien explorers who discover the ruins of our society would struggle to interpret human history without some great store of information to guide them.
Maybe these postapocalyptic scenarios are far-fetched, but even if society is never, say, drowned by the seas in some climate-driven disaster, leaving the remnants of humanity clinging to a few small bits of land, the massive collection of knowledge accumulated by the Internet Archive, comprising millions of books, is an invaluable resource….”
“If civilization ever falls to a zombie apocalypse or nuclear Armageddon, we will need to have preserved centuries of accumulated practical knowledge to rise again. And if humanity should go extinct, leaving nothing but our legacy, the alien explorers who discover the ruins of our society would struggle to interpret human history without some great store of information to guide them.
Maybe these postapocalyptic scenarios are far-fetched, but even if society is never, say, drowned by the seas in some climate-driven disaster, leaving the remnants of humanity clinging to a few small bits of land, the massive collection of knowledge accumulated by the Internet Archive, comprising millions of books, is an invaluable resource….”
“The nonprofit Internet Archive is appealing a judgment that threatens the future of all libraries. Big publishers are suing to cut off libraries’ ownership and control of digital books, opening new paths for censorship and surveillance. If this ruling is allowed to stand, it will result in:
Increased censorship or even deletion of books, decided only by big publishing shareholders
Big Tech growing its overreach into library patron’s data, making people unsafe by monitizing intimate personal information on what they read or research
Even more predatory licensing fees from Big Media monopolies, who are gobbling up public and school library budgets
Reduced access to books for people from every community
Losing libraries as preservers of vast swaths of history and culture, because they will never be allowed to own and preserve digital books
More information is available at BattleForLibraries.com. The organizers of that website are holding a rally at the Internet Archive on Funston St in San Francisco on Saturday, April 8, 2023 at 11 am. This event is also on Facebook, where it’s very easy and fast to invite ALL your friends in the Bay Area.
All are welcome. Bring signs (we’ll also have some to share!) and join us to stand up for the rights of libraries to own and preserve books—whether they’re digital or print.”
“Also, irrespective of the number of physical copies of that book that libraries participating in the IA’s digitisation project own, for the purpose of digital lending it counts as only one additional copy per library. For example, if libraries of the All India Institute of Medical Sciences, the Indian Institute of Science, and the National Law School of India University (NLSIU) were partners in the IA’s digitisation project and each of these institutions had six physical copies of a particular book on health law, the CDL model would ensure that readers could borrow no more than three copies of that book at a time….
Though India is yet to have a major CDL initiative, some universities such as the NLSIU have initiated major digitisation projects that can facilitate CDL in future. The outcome in the IA litigation will in turn have considerable ramifications for such initiatives, in India and elsewhere. In addition, even current lending practices in physical libraries could be threatened if other courts followed the SDNY district court’s logic, in prioritising the economic interests of just one of the stakeholders over the broader public interest.
It is high time to remind ourselves that the copyright system is not just about protecting the interests of copyright holders, but, equally, about protecting the rights of the users of copyrighted works, and thus the broader public interest.”
Abstract: Libraries have continuously evolved their ability to provide access to collections in innovative ways. Many of these advancements in access, however, were not achieved without overcoming serious resistance and obstruction from the rightsholder and publishing industry. The struggle to maintain the library’s access-based mission and serve the public interest began as early as the late 1800s and continues through today. We call these tactics the “publishers’ playbook.” Libraries and their readers have routinely engaged in lengthy battles to defend the ability for libraries to fulfill their mission and serve the public good. The following is a brief review of the times and methods that publishers and rightsholder interests have attempted to hinder the library mission. This pattern of conduct, as reflected in ongoing controlled digital lending litigation, is not unexpected and belies a historical playbook on the part of publishers and rightsholders to maximize their own profits and control over the public’s informational needs. Thankfully, as outlined in this paper, Congress and the courts have historically upheld libraries’ attempts to expand access to information for the public’s benefit.
Last Monday was the day of the oral arguments in the Big Publishers’ lawsuit against libraries in the form of the Internet Archive. As we noted mid-week, publishers won’t quit until libraries are dead. And they got one step closer to that goal on Friday, when Judge John Koetl wasted no time in rejecting every single one of the Internet Archive’s arguments.
The fact that the ruling came out on the Friday after the Monday oral arguments suggests pretty strongly that Judge Koeltl had his mind made up pretty quickly and was ready to kill a library with little delay. Of course, as we noted just last Wednesday, whoever lost at this stage was going to appeal, and the really important stuff was absolutely going to happen at the 2nd Circuit appeals court. It’s just that now the Internet Archives, and a bunch of important copyright concepts, are already starting to be knocked down a few levels.
I’ve heard from multiple people claiming that of course the Internet Archive was going to lose, because it was scanning books (!!) and lending them out and how could that be legal? But, the answer, as we explained multiple times, is that every piece of this copyright puzzle had already been deemed legal.
And the Internet Archive didn’t just jump into this without any thought. Two of the most well known legal scholars regarding copyright and libraries, David Hansen and Kyle Courtney, had written a white paper detailing exactly how and why the approach the Internet Archive took with Controlled Digital Lending easily fit within the existing contours and precedents of copyright law.
But, as we and others have discussed for ages, in the copyright world, there’s a long history of courts ignoring what the law actually says and just coming up with some way to say something is infringement if it feels wrong to them. And that’s what happened here.
A key part of the ruling, as in a large percentage of cases that are about fair use, is looking at whether or not the use of the copy is “transformative.” Judge Koeltl is 100% positive it is not transformative.
There is nothing transformative about IA’s copying and unauthorized lending of the Works in Suit.7 IA does not reproduce the Works in Suit to provide criticism, commentary, or information about them. See 17 U.S.C. § 107. IA’s ebooks do not “add[] something new, with a further purpose or different character, altering the [originals] with new expression, meaning or message.” Campbell, 510 U.S. at 579. IA simply scans the Works in Suit to become ebooks and lends them to users of its Website for free. But a copyright holder holds the “exclusive[] right” to prepare, display, and distribute “derivative works based upon the copyrighted work.”
But… there’s a lot more to “transformative” use than simply adding something new or altering the meaning. In many cases, fair use is found in cases where you’re copying the exact same content, but for a different purpose, and the Internet Archive’s usage here seems pretty clearly transformative in that it’s changing the way the book can be consumed to make it easier for libraries to lend it out and patrons to read it. That is, the “transformation” is in the way the book can be lent, not the content of the book.
I know many people find this strange (and the judge did here as well) saying things like “but it’s the whole work.” Or “the use is the same because it’s still just reading the book.” But the Supreme Court already said, quite clearly, that such situations can be fair use, such as in the Sony v. Universal case that decided VCRs were legal, and that time shifting TV shows was clear fair use. In that ruling, they even cite Congress noting that “making a copy of a copyright work for… convenience” can be considered fair use.
Unfortunately, Judge Koeltl effectively chops away a huge part of the Sony ruling in insisting that this is somehow different.
But Sony is plainly inapposite. IA is not comparable to the parties in Sony — either to Sony, the alleged contributory copyright infringer, or to the home viewers who used the Betamax machine for the noncommercial, nonprofit activity of watching television programs at home. Unlike Sony, which only sold the machines, IA scans a massive number of copies of books and makes them available to patrons rather than purchasing ebook licenses from the Publishers. IA is also unlike the home viewers in Sony, who engaged in the “noncommercial, nonprofit activity” of viewing at a more convenient time television programs that they had the right to view for free at the time they were originally broadcast. 464 U.S. at 449. The home viewers were not accused of making their television programs available to the general public. Although IA has the right to lend print books it lawfully acquired, it does not have the right to scan those books and lend the digital copies en masse.
But note what the Judge did here. Rather than rely on the text of what the Supreme Court actually said in Sony, he insists that he won’t apply the rules of Sony because the parties are different. But if the basic concepts and actions are covered by the Sony ruling, it seems silly to ignore them here as the judge did.
And the differences highlighted by the court here have no bearing on the actual issues and the specifics of fair use and the law. I mean, first of all, the fact that Koeltl claims that the Internet Archive is not engaged in “noncommercial, nonprofit activity” is just weird. The Internet Archive is absolutely engaged in noncommerical, nonprofit activity.
The other distinctions are meaningless as well. No, IA is not building devices for people to buy, but in many ways IA’s position here should be seen as stronger than Sony’s because Sony actually was a commercial operation, and IA is literally acting as a library, increasing the convenience for its patrons, and doing so in a manner that is identical to lending out physical books. Sony created a machine, Betamax, that copied TV shows and allowed those who bought those machines to watch the show at a more convenient time. IA created a machine that copies books, and allows library patrons to access those books in a more convenient way.
Also, the Betamax (and VCR) were just as “available to the general public” as the Internet Archive is. The idea that they are substantially different is just… weird. And strikes me as pretty clearly wrong.
There’s another precedential oddity in the ruling. It relies pretty heavily on the somewhat terrible fair use ruling in the 2nd Circuit in the Warhol Foundation v. Goldsmith case. That case was so terrible that we (at the Copia Institute) weighed in with the Supreme Court to let them know how problematic it was, and the Supreme Court is still sitting on a decision in that case.
Which means the Supreme Court is soon to rule on it, and that could very much change or obliterate the case that Judge Koeltl leans on heavily for his ruling.
Here, Judge Koeltl repeatedly goes back to the Warhol well to make various arguments, especially around the question of the fourth fair use factor: the effect on the market. To me, this clearly weighs towards fair use, because it’s no different than a regular library. Libraries are allowed to buy (or receive donated) books and lend them out. That’s all the Open Library does here. So to argue there’s a negative impact on the market, the publishers rely on the fact that they’ve been able to twist and bend copyright law so much that they’ve created a new, extortionate market in ebook “licenses,” and then play all sorts of games to force people to buy the books rather than check them out of the library.
Judge Koeltl seems particularly worried about how much damage this could do this artificially inflated market:
It is equally clear that if IA’s conduct “becomes widespread, it will adversely affect the potential market for the” Works in Suit. Andy Warhol Found., 11 F.4th at 48. IA could expand the Open Libraries project far beyond the current contributing partners, allowing new partners to contribute many more concurrent copies of the Works in Suit to increase the loan count. New organizations like IA also could emerge to perform similar functions, further diverting potential readers and libraries from accessing authorized library ebooks from the Publishers. This plainly risks expanded future displacement of the Publishers’ potential revenues.
But go back and read that paragraph again, and replace the key words to read that if libraries become widespread, it will adversely affect the potential market for buying books in bookstores… because libraries would be “diverting potential readers” from purchasing physical books, which “plainly risks expanded future displacement of the Publishers’ potential revenues.”
Again, the argument here is effectively that libraries themselves shouldn’t be allowed. And that seems like a problem?
Koeltl also falls into the ridiculous trap of saying that “you can’t compete with free” and that libraries will favor CDL-scanned books over licensed ones:
An accused infringer usurps an existing market “where the infringer’s target audience and the nature of the infringing content is the same as the original.” Cariou, 714 F.3d at 709; see also Andy Warhol Found., 11 F.4th at 50. That is the case here. For libraries that are entitled to partner with IA because they own print copies of books in IA’s collection, it is patently more desirable to offer IA’s bootleg ebooks than to pay for authorized ebook licenses. To state the obvious, “[i]t is difficult to compete with a product offered for free.” Sony BMG Music Ent. v. Tenenbaum, 672 F. Supp. 2d 217, 231 (D. Mass. 2009).
Except that’s literally wrong. The licensed ebooks have many features that the scanned ones don’t. And many people (myself included!) prefer to check out licensed ebooks from our local libraries rather than the CDL ones, because they’re more readable. My own library offers the ability to check out books from either one, and defaults to recommending the licensed ebooks, because they’re a better customer experience, which is how tons of products “compete with free” all the time.
I mean, not to be simplistic here, but the bottled water business in the US is an over $90 billion market for something most people can get for free (or effectively free) from the tap. That’s three times the size of the book publishing market. So, uh, maybe don’t say “it’s difficult to compete with free.” Other industries do it just fine. The publishers are just being lazy.
Besides, based on this interpretation of Warhol, basically anyone can destroy fair use by simply making up some new, crazy, ridiculously priced, highly restrictive license that covers the same space as the fair use alternative, and claim that the alternative destroys the “market” for this ridiculous license. That can’t be how fair use works.
Anyway, one hopes first that the Supreme Court rejects the terrible 2nd Circuit ruling in the Warhol Foundation case, and that this in turn forces Judge Koeltl to reconsider his argument. But given the pretzel he twisted himself into to ignore the Betamax case, it seems likely he’d still find against libraries like the Internet Archive.
Given that, it’s going to be important that the 2nd Circuit get this one right. As the Internet Archive’s Brewster Kahle said in a statement on the ruling:
“Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society—owning, preserving, and lending books.
This ruling is a blow for libraries, readers, and authors and we plan to appeal it.”
What happens next is going to be critical to the future of copyright online. Already people have pointed out how some of the verbiage in this ruling could have wide reaching impact on questions about copyright in generative AI products or many other kinds of fair use cases.
One hopes that the panel on the 2nd Circuit doesn’t breezily dismiss these issues like Judge Koeltl did.