In Defense of Library Lending

“The Hachette v. Internet Archive case has been in the press lately following the parties’ filing of summary judgment motions. But the case is not about the end of copyright as we know it, as Copyright Alliance CEO Keith Kupferschmid implied in his July 18 PW Soapbox, “Standing Up for Copyright.” Nor is it a “torpedo” aimed at the Copyright Act, as AAP CEO Maria Pallante said in a recent PW q&a. Rather, the case concerns the special role of libraries to provide open, nondiscriminatory access to books.

At issue in the publishers’ lawsuit is a practice called controlled digital lending, the principles of which my colleague Dave Hansen and I codified in a 2018 white paper. Under CDL, libraries (including the Internet Archive) make scans of their legally acquired physical books and loan the scans in lieu of the print under rules that mimic physical lending: only one person can borrow a scan at a time; the scans are DRM-protected; and only one format can circulate at a time to maintain a one-to-one “owned-to-loan” ratio. In other words, if the scan is checked out, its print counterpart cannot circulate, and vice versa….

Pallante suggests such efficiency is a bad thing, citing the publishers’ long expressed desire for “friction” in digital library lending. But having legally purchased their physical books, the IA and its partner libraries are entitled under copyright law to lend them. Nothing in the Copyright Act requires there be any amount of friction in the lending process. Copyright law does not protect friction.

It is time for the major publishers to stop treating each library loan as a lost consumer sale. In his Soapbox, Kupferschmid complained that the IA has “amassed a collection without paying the rights holders a cent.” In fact, the books were paid for. These are the books that sit on our libraries’ shelves or in our off-site repositories. They were all purchased by a library or otherwise legally acquired, and the authors were all paid in accordance with their publishing contracts. Furthermore, this is what libraries do: amass and preserve collections that serve an important, fundamental purpose in society long recognized and valued by the public, courts, Congress, as well as by publishers and authors….”

Neil Gaiman, Alok Menon, Naomi Klein, Saul Williams, and 300+ authors pen open letter supporting libraries’ rights in the digital age | Fight for the Future

Over 300 authors including Neil Gaiman, Alok Menon, Naomi Klein, Saul Williams, Hanif Abdurraqib, Lawrence Lessig, Chuck Wendig, and Cory Doctorow have released an open letter in support of the continued role of libraries in the digital age. 

It reads in part:

“Libraries are a fundamental collective good. We, the undersigned authors, are disheartened by the recent attacks against libraries being made in our name by trade associations such as the American Association of Publishers and the Publishers Association: undermining the traditional rights of libraries to own and preserve books, intimidating libraries with lawsuits, and smearing librarians.“

The full text of the letter, full list of signatories, as well as a form for more authors to sign on is available at http://FightForTheFuture.org/Authors-For-Libraries.

The letter demands that publishers, distributors, and trade associations:

Enshrine the right of libraries to own, preserve, and loan books on reasonable terms regardless of format
End lawsuits aimed to intimidate libraries or diminish their role in society
Halt industry-led smear campaigns against librarians

Notable among the signatories are Chuck Wendig and Neil Gaiman. Wendig initially criticized the Internet Archive’s temporary suspension of 1-owned-to-1-loaned restrictions during the first pandemic lockdown, but has since spoken out against major publishers’ lawsuit against the library, joining Gaiman. The suit seeks to end the Internet Archive’s Open Library Project, which partners with 80+ libraries including Boston Public Library, Milton Public Library, University of Arizona, and the Philadelphia Museum of Art to loan out digital scans of physical books the Internet Archive Library owns.

The suit’s scope reaches to the core of the right to own digital books. Briefs in the case are due October 7th. If publishers prevail, they will effectively terminate the rights of all libraries across the US to own, preserve, and loan digital books by “blocking” a practice called controlled digital lending—locking in licensing models with grave implications for readers’ safety.

 

“A danger to democracy itself”: Authors fight back against limiting libraries’ digital rights | Salon.com

“These are but a handful of the writers who have signed their names to an open letter released Thursday by a nonprofit group concerned with digital rights issues, Fight for the Future. The letter, titled “Authors for Libraries,” expresses disheartenment about “the recent attacks against libraries being made in our name by trade associations such as the Association of American Publishers and the Publishers Association.”

The letter calls for libraries to be able to “permanently own and preserve books, and to purchase these permanent copies on reasonable terms, regardless of format.” That seems like a typical right of libraries, but the books in question are specifically e-books. Currently, libraries must pay to rent, not own, e-books from publishers, and the prices, according to the letter, “are often likened to extortion.” This, despite e-books often being cheaper to manufacture than print books and more accessible. …”

The Future of Online Lending: A Discussion of Controlled Digital Lending and Hachette with the Internet Archive | Berkman Klein Center

“The Internet Archive offers Controlled Digital Lending (CDL), where it lends digital copies of books to patrons — but ensures that the number of books owned is equal to the number loaned. Through the Open Library, the Internet Archive aims to “make all the published works of humankind available to everyone in the world.”

In June 2020, four major publishers sued the Archive for copyright infringement, alleging that CDL threatens their business model. 

Join us for a discussion with Brewster Kahle, founder and digital librarian of the Internet Archive, about the pending Hachette v. Internet Archive case and the future of digital libraries. Kahle will be joined by Rebecca Tushnet and Kyle Courtney, amici in the case, and Jonathan Zittrain.

The panel will explore the background of the case and the National Emergency Library, the value of CDL for online libraries and public access, CDL’s fair use implications, and the future of online libraries and large publishers….”

Could the Internet Archive go out like Napster?

“Since the suit was filed, many of the authors who’d protested the archive have deleted their tweets or released statements explaining they’ve changed their minds. Wendig, who initially appeared to be leading the charge, has since stated several times that he is not involved with the case. And on July 14, the Authors Alliance, an organization that helps authors to reach more readers, filed an amicus brief in the lawsuit on behalf of the Internet Archive.

One thing hasn’t changed: fears that the vagaries of this case could cripple the archive and, subsequently, the myriad services it offers the 1.5 million people who visit it every day. In addition to lending books digitally, the Internet Archive hosts the Wayback Machine, a tool that has chronicled internet history since 1996; the concern is that if legal costs drain the archive of its funds, all of its services could be affected. Users of the site and digital archivists have compared the potential loss of the archive’s services to the burning of the Library of Alexandria. Yet book companies also view the stakes here as existential for their business model; the International Publishers Association stated that this case is of “global significance” to its members….”

Book publishers, Internet Archive spar over fate of digital-book lending lawsuit | Reuters

By Blake Brittain

(Reuters) – The Internet Archive and a coalition of major book publishers submitted dueling arguments Friday to persuade a Manhattan federal court that they deserve an immediate win in their potential landmark copyright dispute over digital lending.

The parties squared off in opposing court papers over the legality of the Archive’s “controlled digital lending” of digitally scanned print books, which the Archive equates to traditional library lending but the publishers call a front for mass infringement.

[…]

 

Internet Archive Opposes Publishers in Federal Lawsuit – Internet Archive Blogs

“On Friday, September 2, we filed a brief in opposition to the four publishers that sued Internet Archive in June 2020: Hachette Book Group, Harper Collins Publishers, John Wiley & Sons, and Penguin Random House. This is the second of three briefs from us that will help the Court decide the case….

Our opposition brief responds to the arguments raised in the publisher’s motion for summary judgment. There, some of the world’s largest and most-profitable publishers complained that sometimes “Americans who read an ebook use free library copies, rather than purchasing a commercial ebook.” They believe that copyright law gives them the right to control how libraries lend the books they own, and demand that libraries implement the restrictive terms and conditions that publishers prefer.

 

Our opposition brief explains that “[p]ublishers do not have a right to limit libraries only to inefficient lending methods, in hopes that those inefficiencies will lead frustrated library patrons to buy their own copies.” The record in this case shows that publishers have suffered no economic harm as a result of our controlled digital lending–indeed, publishers have earned record profits in recent years. “[D]igital lending of physical books costs rightsholders no more or less than, for example, lending books via a bookmobile or interlibrary loan. In each case, the books the library lends are bought and paid for, ensuring that rightsholders receive all of the financial benefits to which they are entitled.” …”

Own Music! Own Books! – Popula

“It’s long past time for media ownership to be recognized as an essential right. The Internet Archive and all other digital libraries and archives must be protected, and people need to see this ludicrously unethical suit by big publishers for what it is: an assault on art and truth and its protection for posterity.”

A major publishing lawsuit would cement surveillance into the future o

“Amid the inflection point of library digitization, publishing corporations want to reduce and redefine the role that libraries play in our society. Their suit seeks to halt loans of legally purchased and scanned books, cementing a future of extortionate and opaque licensing agreements and Netflix-like platforms to replace library cards with credit cards. If successful, they will erode the public’s last great venue to access information free from corporate or government surveillance. This dire threat to the privacy and safety of readers has gone largely unnoticed….”

Mitigating the Library eBook Conundrum

“Current eBook licensing practices are eradicating the central mission of libraries, with grave repercussions for equity and access to the world’s knowledge. The root of the issue is that while libraries buy print books in order to lend them to patrons, they can’t actually buy eBooks. Instead, they license the content from publishers. This means that publishers can set whatever terms they want in eBook licenses to libraries—or refuse to license them at all.

Library Futures supports legislation that aims to equitize the eBook marketplace. To that end, we have developed model legislative language that avoids the problematic Maryland language and that we therefore believe will hold up against legal challenges. In short, we propose model legislation grounded in state consumer protection, state contract law, state procurement law, and contract preemption.

This webinar will bring together the two Library Futures fellows (Juliya Ziskina and Emily Finch), in conversation with Kyle Courtney (Library Futures board chair), and Dave Hansen (ED, Author’s Alliance) to discuss this new model bill and future legislative remedies for the eBook conundrum.”

Publishers are suing the Internet Archive over digital book lending – The Washington Post

“At the start of the pandemic, teachers and librarians pleaded with a prominent nonprofit to make it easier for kids at home to check out books from its digital library. The organization, called the Internet Archive, agreed. While it traditionally loaned out its more than a million digital books one at a time to the public and through partnerships with libraries, it dropped that limit in what it described as a “National Emergency Library.” Roughly two months later, major book publishers including HarperCollins sued the Internet Archive for copyright infringement — saying its digital library initiative “grossly exceed” what libraries are allowed to do. A few months later, it reinstated lending limits, court documents show. The fight, which the publishers and the Internet Archive asked a federal court to end earlier this month, has triggered a larger ideological debate about the application of copyright law when it comes to digital copies of books, pitting publishers and authors against librarians. At stake is the future of how libraries are allowed to buy and lend out digital books to the public, which advocates say is core to a functioning democracy as technology takes over….”

https://web.archive.org/web/20220725123114/https://www.washingtonpost.com/technology/2022/07/25/internet-archive-digital-lending-lawsuit/

Publishers vs the Internet Archive: why the world’s biggest online library is in court over digital book lending

“Earlier this month, the Internet Archive asked a US court to end a lawsuit filed against it by four large book publishers.

The Internet Archive is a not-for-profit organisation founded in 1996 that lends digital copies of books, music, movies and other digitised content to the public. It aims to support people with print disabilities, preserve digital content for future generations and democratise access to knowledge.

The publishers say the Internet Archive’s digital lending practices amount to wilful copyright infringement. Authors have also complained the site hosts pirated content.

The Internet Archive says it is behaving like an ordinary library, as it only loans digital copies of physical books it owns. Its supporters at the Electronic Frontiers Foundation say the publishers simply want “to control how libraries may lend the books they own”. …”

Clinic Works w/ Amici Kenneth Crews and Kevin Smith to Support Internet Archive’s Controlled Digital Lending Efforts |

“Last week, the Cyberlaw Clinic filed an amicus brief in the United States District Court for the Southern District of New York in support of Internet Archive (“IA”) a non-profit digital library working to provide access to cultural artifacts of all kinds. The Clinic filed the brief on behalf of amici curiae Kenneth D. Crews and Kevin L. Smith, library and information scholars and historians with significant expertise on libraries and archives. The brief supports IA in a case filed against them by book publishers, alleging that IA’s controlled digital lending (“CDL”) program infringes their copyrights….”

A debrief on Internet Archive’s clash with book publishers | Popular Science

“Last week, the ongoing case entered a new chapter as the nonprofit organization filed a motion for summary judgment, asking a federal judge to put a stop to the lawsuit, arguing that their Controlled Digital Lending program “is a lawful fair use that preserves traditional library lending in the digital world” since “each book loaned via CDL has already been bought and paid for.” On Friday, Creative Commons issued a statement supporting Internet Archive’s motion. 

The public libraries in your local neighborhood usually partner with platforms like Overdrive, Libby, Hoopla, and Cloud Library to provide digital copies of books that they can loan out. But these library ebooks are part of a surprisingly complex and lucrative financial structure (Daniel A. Gross’ piece in The New Yorker deep dives into the business behind library ebooks). Additionally, users must login to these services with an existing library card number. 

Internet Archive works a little differently. Anyone can create a free account and start browsing materials like books, movies, software, music, websites and more. …”