Megapublishers use a Trojan horse to assault libraries by bringing it into the courts
on Jul 19, 2022
Four titans of corporate publishing—Hachette, Penguin Random House, HarperCollins, and Wiley—charged the Internet Archive with theft, "mass-scale copyright infringement," and “distributing full-text digital bootlegs for free" in a stunning brief submitted on July 7 in their ongoing litigation.
Those are some rather outrageous claims, especially in light of the fact that the Internet Archive's Open Library operates in accordance with the customary guidelines that American libraries have followed for generations. Like any other library, The Open Library lends books that it owns to one user at a time for a predetermined amount of time. The Open Library offers this service free of charge, just like any other public library. The primary distinction is that the Open Library offers online book loans. Each e-book is created by scanning a paper copy, which is then saved and not used again; this process is known as controlled digital lending or CDL.
No money exchanges hands; only one book, duly purchased or acquired, one scan, and one patron at a time. The publishers' brief nevertheless makes an effort to paint the Internet Archive librarians as a band of crooks and pirates.
Truthfully, the publishers' assault on the Internet Archive is a ruse to advance a radical and very different viewpoint: e-books are fundamentally—and legally—different from traditional books. If adopted, their claim would disqualify e-books from the several legal safeguards that favourably support library rights. As a result, libraries would be exposed to the harsh licence terms that increasingly apply to e-books. In the absence of digital books that can be permanently purchased and owned outright, libraries would have to pay continuously.
The real renegades here are not the librarians of the Internet Archive, but the publishers, who are looking to take a machete to the Copyright Act in order to make their e-book products rental-only, so that libraries—along with you, me, and everyone else—will have to keep paying for them forever. The real stakes in this lawsuit are not digital piracy, but the preservation of library rights. Libraries won't be autonomous organisations with the freedom to choose what to lend; instead, they'll be constrained by what publishers choose to give—or don't offer.
Internet Archive founder Brewster Kahle argues, "We need strong and independent publishers, and we need strong and independent libraries."
Preservation of traditional library rights has been difficult in the digital age since statutory safeguards for libraries were created decades ago when technical restrictions on copying and distribution were far different from what they are now. One way or another, these issues will always come up again in court. In fact, in her fundamental study on the legal system that became known as CDL in 2011
We noted that, despite publisher legal resistance, the spirit of the law is on the side of libraries: The Copyright Clause was enacted not simply to defend authors but also to enhance education and public awareness. The public good, she added, "is at the core of copyright."
Following the release of Wu's paper, a number of top copyright and library professionals collaborated to build CDL, a comprehensive legal toolkit for the traditional library lending of e-books that was created with these legal issues in mind. Digital lending by The Internet Archive is based on CDL, and this justification is what the lawsuit is truly testing.
Disingenuously, the publishers' brief blatantly misrepresents the lengthy background and growth of CDL: "Internet Archive has spent years trying to justify its blatant infringing on the law. It assisted in the production and marketing of a theory known as "controlled digital lending," or "CDL," about 2018.
According to their brief, "Publishers spend millions of dollars to make books available to the public," and that is accurate. Books are shepherded into the world by publishers, who offer a crucial service to everyone. They have every right to receive a just reward for their efforts. However, they lack the authority to alter the laws that safeguard libraries.
By the way, this text is noticeably lacking in public-spiritedness. "The Publishers deeply value libraries, recognising that they foster public literacy, serve local communities, and increase the visibility of authors through book clubs, author talks, and other creative methods of reader involvement," they were able to manage, perhaps realising they'd better choke out a statement of support for libraries in general. Libraries provide funding for print and digital publications to support authors.
Indeed, they do! Publishers have turned to libraries as a major source of income, particularly during the pandemic when no one could access a real library. In a very succinct statement, they acknowledge it themselves: "The publishers' annual revenue from the library ebook market, which is shared with authors, has increased to hundreds of millions of dollars, simultaneously establishing an important market channel for many titles and serving a more digital public."
Since I'm a writer, it completely astounds me that these big publishers have no visible sense of duty to the public commons or the mutually beneficial connection that honourable publishers should have with libraries in a free society. They are both meant to be fighting for an educated, healthy, and informed populace. Instead of being libraries' adversaries, publishers ought to be their allies.
The main feature of private property, according to legal scholars, is the ability to exclude others. Or, to put it another way, what makes something yours is the right to keep other people's hands off of it. But in the era of the Internet, the concept of private ownership has become hazy. We've all witnessed how sales have been replaced by complicated licences, particularly in the case of digital media like movies and music.
However, there is a more serious issue with this query that should worry everyone who invests time and money in the online realm. Due to the rising intangibility of digital property, it has become much more difficult for us to define and defend our rights over the digital property we do own. All of these things are valuable private property, including collections of photos, papers, and music; information about your whereabouts, preferences, and lifestyle; and records of your interactions with organisations and the government.
However, information is now invisible, stored on your phone or laptop, and frequently outside of any kind of real private control, as opposed to being kept in an antique bookshelf or filing cabinet.
There is no meaningful "right to exculpate" when a variety of unknown and unknowable digital intruders can access your devices without your knowledge or permission, take control of your transaction and location histories, track your online activities, modify your software, or deny you access to digital books and music (all based on the terms of some zillion-page End-User Agreement that no one in their right mind would even attempt to read). We are being forced to lose sight of what it means to simply have private custody of our property.
Paradoxically, this lack of awareness of individual liberties and rights contributes to the ability of companies to keep gaining more power. They don't have amnesia; they just want to enhance and expand their personal control over the things they own.
What we can't see or understand clearly is difficult to defend. However, there is every reason to keep allowing individuals and, in particular, libraries, to hold digital property outright and in a conventional manner.
This action poses an urgent and significant threat to the freedom of information and speech at a time when radical right-wingers are outlawing and restricting books and even pushing for the closing of public libraries. You'd think that the goon squad would let us read Alison Bechdel or Art Spiegelman and then let us go to hell in peace. However, they won't. Fighting to protect libraries' traditional rights to own, preserve, and lend books is therefore extremely important.
These publishers should be forced to accept Controlled Digital Lending's legality and the legal parity between digital and physical books in addition to losing their legal case against the Internet Archive. They could then wake up and realise that the kind of country they're trying to create isn't one they would truly want to live in.