“Today’s lower court decision in Hachette v. Internet Archive is a blow to all libraries and the communities we serve. This decision impacts libraries across the US who rely on controlled digital lending to connect their patrons with books online. It hurts authors by saying that unfair licensing models are the only way their books can be read online. And it holds back access to information in the digital age, harming all readers, everywhere.

But it’s not over—we will keep fighting for the traditional right of libraries to own, lend, and preserve books. We will be appealing the judgment and encourage everyone to come together as a community to support libraries against this attack by corporate publishers….”

Earlier this week there was finally a hearing in the case brought by the big book publishers to kill off libraries. That, of course, is not how the publishers describe the lawsuit, but it’s absolutely what the lawsuit is about.

We’ll get to some of the details in a moment, but we’ve joked in the past that if libraries were new today there’s no way that book publishers would let them exist. In some ways they’re a legacy holdover from before publishers had that much power. The attack on controlled digital lending (CDL) more or less proves this.

As much as publishers like to claim they “love libraries,” their actions here speak quite clearly that they would destroy them if they could. Controlled digital lending is no different from how a library lends out books today. In both cases, it gets a physical copy of the book (either through purchase or donation), and then proceeds to lend out that copy. With a physical library it’s literally that physical copy. With CDL it’s a scan of that book, but the scan is tied to the physical copy, so that if a digital copy is loaned out, no one else can take out another copy.

Every part of that has been deemed legal. Copyright law already has first sale rights, written directly into the law and allow for the lending or reselling of copyright-covered works without a license or permission. Similarly libraries are given explicit rights to make copies, so long as those collections are made available to the public. On top of that, courts have determined, multiple times, that book scanning itself is fair use for libraries.

So, literally each separate component of what is happening with Controlled Digital Lending has already been deemed to be legal and exactly what we expect libraries to do.

To counter this, publishers (and their supporters, which unfortunately include some authors) argue that (1) this interferes with the market for licensed ebooks, and (2) that there is a real difference in lending out the digital scans: that they don’t deteriorate the way that physical books do.

There are simple answers to both of these. First, (1) is a preposterous argument because (yet again) you could say the exact same thing for regular, existing libraries. The question is not must copyright enable any market. It’s whether or not copyright allows certain behaviors, and here it absolutely does. And that doesn’t even get into the fact that the big publishers have turned licensed ebooks for libraries into an extortionate, nonsense scheme to effectively block libraries from lending ebooks at all. If anything, what’s happened in the market for licensed ebooks to libraries actually helps to prove why we need controlled digital lending in the first place.

As for (2) that argument is also garbage for a number of reasons, most notably that official ebooks are just generally way more useful than the scanned ebooks anyway. The formatting is better, they’re designed to work better on ebook readers which provide additional features. In almost every case, scanned CDL books are a second-best choice compared to what else is available. In other words, it’s most likely only used when other options aren’t readily available.

But, again, the legacy book publishing world is really admitting they hate libraries. Somewhat incredibly-timed, the same day as the hearing in this lawsuit, a tweet went viral highlighting a laughably wrong copyright statement from a “dark fantasy romance series” called “Zodiac Academy” by authors Caroline Pekcham and Susanne Valenti. The verbiage on the copyright page is so over the top that it made me wonder if it was parody:

It reads:

This book is licensed for your personal enjoyment only.

This book may not be re-sold or given away to other people. If you would like to share this book with another person, please purchase an additional copy for each recipient. If you’re reading this book and did not purchase it, or it wasn’t purchased for your use only, then please return to your favorite book retailer and purchase your own copy. Thank you for respecting the hard work of this author.

All rights reserved.

That’s not how any of this works. The very next line says “This is a work of fiction” which is supposed to apply to the book itself, but could accurately be used to describe the “license” claims above it. A license for written works is limited to what the author can claim under copyright law, and as noted above, none of what is claimed here is allowed under copyright law, meaning that this license itself is a form of copyfraud: it attempts to limits a users’ own rights through deception regarding the actual limits of copyright law.

This particular bit of nonsense has shown up on Reddit in the past as well, but went even more viral this time, and at a perfect time to highlight just how much the modern publishing industry (and some of the authors they’ve dragged along with them) absolutely would destroy libraries if given the opportunity.

And that brings us to the hearing. You never quite know how a judge is going to rule, and from the descriptions of the arguments in court it sounds like Judge John Koeltl asked tough questions of both sides. He challenged the publishers to explain if they had any evidence that the Internet Archive’s Open Library caused them any harm (as their own bottom lines grew massively after it was opened).

However, he also questioned whether or not the Internet Archive really has the right to make copies. The answer to that question should be obviously yes, based on the law and the case law on this matter, but you never know how judges will rule. The publishers, for their part, tried to argue away their successful pandemic run by arguing… they should have made even more money:

During this same time, however, the book publishing industry experienced so much demand that revenues rose by 12 percent, amounting to a $3 billion spike in sales by 2021, Publishers Weekly reported. Because publishers profited when the National Emergency Library was made available, Koeltl pushed back on McNamara, asking how to reconcile the surge in profits with allegations of harm caused.

McNamara seemed to suggest that publishers would have been further enriched if not for IA providing unprecedented free, unlimited e-books access. She also told Koeltl that publishers suing—Hachette, HarperCollins, Penguin Random House, and Wiley—are concerned that there are already some libraries avoiding paying e-book licensing fees by partnering with IA and making their own copies. If the court sanctioned IA’s digitization practices and thousands of libraries started digitizing the books in their collections, the entire e-book licensing market would collapse, McNamara suggested.

But, uh, the same argument could be easily made against existing libraries. And yet, we treasure them and they’ve done nothing to destroy the book market (and much to help it!). The lawyer for the publishers also trotted out this debunked nonsense:

“Free is an insurmountable competitor,” the publishers’ complaint said.

I mean, we’ve been hearing that stupid line for ages, and it’s never been true. As I noted nearly two decades ago, saying you can’t compete with free, is actually an admission that you can’t compete at all. As noted above, there is a qualitative difference between scanned ebooks and licensed ones, but the publishers don’t even seem to recognize this, which is incredible.

There’s also this nonsense from former Copyright Office boss, now publisher top lobbyist, Maria Pallante (who Ars bizarrely describes as “a chief executive” rather than the chief executive):

A chief executive of the Association of American Publishers, Maria Pallante, told The Wall Street Journal that if IA’s conduct “is normalized, there would be no point to the Copyright Act.”

That’s utter nonsense. Again, apply that same reasoning to libraries. What the Internet Archive is doing here is not only blessed by the Copyright Act, it’s no different than what libraries already do.

Either way, now we wait. Whatever outcome in this case, it will surely be appealed, and that’s where the real battle will happen. Hopefully Judge Koeltl starts things off on the right foot.

Oh, one side note, that book with the nonsense copyrfraud “personal use” license? I’m happy to see the following:

List of links to news stories, and excerpts from those stories, on yesterday’s oral arguments in Hachette v. Internet Archive. 

“The most recent example in “The Publisher Playbook” of companies doing their utmost to limit what libraries can make available is the terrible lawsuit against the Open Library for daring to increase access to books during the Covid pandemic. Today, 20 March 2023, the Southern District Court of New York will be hearing the oral arguments in this important case.

The penultimate example of the new research is litigation against US state legislation promoting fair and equitable ebook access. Walled Culture wrote about this back in December 2021, when US publishers sued to stop a Maryland law that would require publishers to license ebooks on “reasonable terms”. Hardly unreasonable, you might have thought, but the publishers disagreed, sued – and unfortunately won….

The model language has been introduced in bills in two states, Massachusetts and Hawaii, but more are in the works, apparently. Of course, publishers are already trying to paint this approach as “unconstitutional”, and they will doubtless challenge proposed laws in the courts. And so the battle between libraries and the publishing industry continues….”