As a child, nothing warmed me more than my mother’s “Three C’s Soup”: Cabbage, Carrot, Carraway from Jane Brody’s Good Food Book: Living the High Carbohydrate Way (published in 1980 and still in print, no ebook version has yet been licensed). And when my mother died in late fall 2018, there was nothing I wanted to cook more, but her copy had gone missing.
I could have called the library and asked them to read me the recipe, or to scan it and to send it to me, but my library had a later print edition of the book. I could have bought a used copy of the 1980 edition, which I eventually did, but I wanted to cook it that day. So instead, I went to Open Library, the Internet Archive’s Controlled Digital Lending program, and borrowed the book for an hour, returning it when the soup was finished. In the words of my mother’s favorite literary character, the Mock Turtle: It was beautiful soup.
About a year and a half later, the Internet Archive was sued for providing books in this manner to the public. The suit was triggered by a short-lived, well meaning program that made books available to students during a dark part of the pandemic by lifting certain restrictions on how many people at a time could borrow a given library title. That lawsuit just came to a judgment, ordering the Archive to take down a part of their collection and striking a blow to Controlled Digital Lending more generally, though the Archive will appeal.
To be clear: what the Internet Archive is doing is traditional library lending in a digital form, and frankly not radical – I can just get access to the materials I want much more quickly through the Archive, but I must also return them much more quickly. There is no situation in which acquiring a recipe from an obsolete edition of Brody’s first cookbook with no ebook equivalent would hurt her royalties. Libraries have traditionally bought one copy of a book and then lent it, much like they do with CDL, which maintains an “owned to loaned” ratio through sequestering materials.
While big publishers would have you believe that people are flocking to the Internet Archive to borrow and read these scans for free rather than relying on the “thriving ebook licensing market for libraries,” they ignore a few crucial facts to advance a bad faith argument about market harm: the average time readers spend with an Internet Archive scan is under 30 minutes. People seem to be using these materials as intended: as reference, grabbing just the bit of information they need.
If someone wants to download and read an ebook outside of a streaming service or licensed copy, they are not going to use a scanned, DRM-protected epub that they can borrow from the Internet Archive for an hour. Authors, publishers, and musicians know this, and yet content rightsholders continue to litigate a nonprofit library at great expense to themselves and their authors. As the New York Times reports, even authors who were once critical of the Archive’s efforts have removed their initial statements. Author Malcolm Harris recently tweeted, “The Internet Archive was an invaluable resource when I was writing PALO ALTO and it pisses me off that Hachette sued in the name of their authors.”
There are, of course, very real threats to authors and publishers: large download sites, censorship by legislators, “chokepoint” intermediaries, AI corporations gobbling up materials and selling them back to the public as new products, the general “enshittification” of platforms, the high overhead costs and venture capital ownership of streaming that has been predicted to collapse for nearly ten years, Overdrive’s monopoly in libraries, publishers’ resistance to reasonable contractual requests by authors, at-risk corporate archives, or Amazon’s stranglehold hold over the digital book and audiobook market. In pursuing this case (and a related case from the music industry), the litigants seek to distract artists from the very real conditions of labor that would start to fix a broken system but might cut into their bottom line: better contracts and a humane income, artistic independence and the freedom to publish, collaborations that inspire new creation, more control over their terms and payments, and less consolidation in the market.
Could copyright holders join together and rethink streaming and licensing in order to build a digital system that works for authors, small publishers, and artists, considering that five companies control at least 77% of the US best seller market and artists are struggling? Of course, but it wouldn’t provide the kind of surveillance of readers, data harvesting, and AI-written books that they hope will cut many authors out of the equation entirely. (Obviously no librarian wants any of the above.) Penalizing libraries providing scans of books and music largely for reference sets a precedent in a limited case that benefits no one.
Creators deserve more. As the SAG AFTRA strike has shown, large, organized communities can disrupt an entire industry by fighting for their rights. Rather than adopting a passive position against corporate overreach in the face of an digital licensing industry where one major company dominates up to 85% of the digital book market (Amazon) and another dominates up to 90% of the library lending market (Overdrive/Libby), we can come together and fight for fairer contracts, particularly when it comes to licensing rights and equitable downstream uses of work. And in my own community of librarians, we must stop infighting about whether we agree with the Archive’s position, or whether Controlled Digital Lending is legal or not. We have to work together to wrest power from the large corporations that dominate commercial publishing. The future of knowledge depends on it.