For many years, we’ve said that if the public library were invented today, the book publishers would sue it out of existence. It appears that the big book publishers have decided to prove me right, as they have decided to sue the Internet Archive for lending ebooks without a license.
Over the last few months, we’ve discussed why publishers and authors were overreacting in their verbal attack on the Internet Archive’s decision to launch a “National Emergency Library” to help out during a pandemic. While many publishers and authors declared this to be “piracy,” that did not square with reality. The Internet Archive was relying on a variety of precedents regarding the legality of libraries scanning books and lending books, as well as around fair use, to argue that what it was doing was perfectly legal. Indeed, the deeper you looked at the issue, the more it looked like the publishers and authors were upset with the Internet Archive for being a library, since libraries don’t need special licenses to lend out books.
In other words, this was yet another attack on property rights. Publishers and some authors were trying to argue that the Internet Archive needed extra licenses to lend out legally made scans of legally obtained books. And to respond to a few common criticisms of the NEL: they were doing this since so many libraries and schools around the world were shuttered due to the pandemic, meaning that millions of books were literally collecting dust on shelves, un-lendable. More importantly, the NEL was not targeting recent releases (all books in the NEL are over 5 years old, and the commercial life of nearly every book is much shorter than that). Finally, contrary to some claims, the books in the NEL are not “bit for bit copies” of high quality ebooks. They are relatively low quality scans. If a more legit version is available, nearly any reasonable person would go for that instead (indeed, I’ve personally purchased multiple books after first borrowing copies from the Open Library before deciding to get a permanent copy). Also, most of the books available in the NEL are simply not available at all in ebook format, meaning that they’re not available at all during the pandemic for many people.
There was some chatter that publishers might choose not to sue the Internet Archive over this, because losing this fight would seriously challenge a bunch of other copyright claims that they rely on. But, come on. These guys are so obsessed with copyright, how could they not sue? So, earlier this week, all the big publisher teamed up to sue the Internet Archive, represented by former RIAA lawyer Matt Oppenheim, who has a long history of being on the bad side of nearly every big copyright case.
Here’s the thing, though: the publishers didn’t just decide to sue over the National Emergency Library: instead they’re also suing over the entire “Controlled Digital Lending” process. That’s the program that the Authors’ Guild has been whining about, which is the underpinning of the NEL. The CDL/Open Library program involves letting libraries lend out digital books if they retain a physical copy of the book on the shelf (so maintaining a one-to-one relationship between books lent out and books that the libraries have in their possession). The NEL took away that limitation, with the argument that this was allowed due to their reading of fair use in the midst of a pandemic with so many books locked up.
While I support the NEL — I can recognize that courts may not buy their fair use arguments. On the CDL/Open Library front, though, that’s just blatantly attacking a very standard library procedure. There can be no argument of “lost revenue” from the CDL, unless you’re attacking the very basis of libraries themselves. And that’s what the lawsuit appears to do.
The scale of IA’s scheme is astonishing: At its “Open Library,” located at www.openlibrary.org and www.archive.org (together, the “Website”), IA currently distributes digital scanned copies of over 1.3 million books. And its stated goal is to do so for millions more, essentially distributing free digital copies of every book ever written. Despite the “Open Library” moniker, IA’s actions grossly exceed legitimate library services, do violence to the Copyright Act, and constitute willful digital piracy on an industrial scale. Consistent with the deplorable nature of piracy, IA’s infringement is intentional and systematic: it produces mirror-image copies of millions of unaltered in-copyright works for which it has no rights and distributes them in their entirety for reading purposes to the public for free, including voluminous numbers of books that are currently commercially available.
Except the identical argument applies to public libraries lending physical copies as well. It does not “grossly exceed legitimate library services.” It makes books it has in its possession available for borrowing. Just like a library. Yes, the books are digitized, but libraries also distribute exact copies of books in their entirety for reading purposes to the public for free. Including voluminous numbers of books that are currently commercially available.
That’s a LIBRARY.
The lawsuit tries to pay lip service to libraries, and to argue that what IA is doing is somehow different than a library, but it doesn’t hold up to much scrutiny. Instead, the lawsuit and the Publisher’s Association’s press release about this are filled with nonsense rhetoric about how crucial books are to society and how evil, evil piracy is. From the lawsuit:
Books have long been essential to our society. Fiction and non-fiction alike, they transport us to new worlds, broaden our horizons, provide us with perspective, reflect the evergrowing knowledge of humanity in every field, spark our imaginations and deepen our understanding of the world. Yet, books are not self-generating. They are the product of training and study, talent and grit, perseverance and creativity, investment and risk, and untold hours of work.
That’s right: and for tons of people they way they read those books is from a library. The Association of American Publishers, led by fired former Copyright Register Maria Pallante is spitting fire over this:
Despite the self-serving library branding of its operations, IA’s conduct bears little resemblance to the trusted role that thousands of American libraries play within their communities and as participants in the lawful copyright marketplace. IA scans books from cover to cover, posts complete digital files to its website, and solicits users to access them for free by signing up for Internet Archive Accounts. The sheer scale of IA’s infringement described in the complaint—and its stated objective to enlarge its illegal trove with abandon—appear to make it one of the largest known book pirate sites in the world. IA publicly reports millions of dollars in revenue each year, including financial schemes that support its infringement design.
In willfully ignoring the Copyright Act, IA conflates the separate markets and business models made possible by the statute’s incentives and protections, robbing authors and publishers of their ability to control the manner and timing of communicating their works to the public. IA not only conflates print books and eBooks, it ignores the well-established channels in which publishers do business with bookstores, e-commerce platforms, and libraries, including for print and eBook lending.
Yeah, but that’s kinda the point, isn’t it? The publishers have been chipping away at “libraries” for years. Before ebooks, libraries could buy books and lend them out. They didn’t need a special license. However, in recent years, publishers have rushed into the opportunity created by ebooks to change that, and to require licenses (crazy, expensive licenses) for ebooks. Just last fall we noted how publishing giant Macmillan (which, somewhat oddly, is the one big publishing house that is not a plaintiff) had gone to war with libraries, using its extreme ebook pricing and licensing terms to basically kill the market for ebook library lending.
It’s that very new imbalance that the CDL/Open Library system was designed to fight back against. But, no, the publishers act as if they’ve always been able to block libraries from lending.
And, of course, filing this lawsuit in the midst of a pandemic (not to mention all the social unrest) in which libraries around the globe remain closed is just… crass.
For what it’s worth, in looking down the list of works sued over, and doing a spot sampling, it looks like at least some (though not all) of the works being sued over are no longer available through the National Emergency Library. Since the NEL has always had a simple opt-out system, it does make you wonder why these publishers and authors didn’t just make use of that. But also looking over that list, I see a bunch of books that I know are read in schools — meaning that these publishing houses likely have just screwed over a bunch of teachers and students, many of whom already have physical copies of books, but find them inaccessible for the kids to read while we all still remain under lockdown.
So much for those books being “essential to our society.”
But, of course, this is copyright, and the rule of the land tends to be that when big legacy copyright holders file lawsuits, they tend to win. I’d say there’s a more than even chance that the Internet Archive loses. Not because it should, but because when big old industries scream copyright infringement, we’ve seen the courts buy it over and over again, even when the legal arguments are nonsensical. And, in this case, the Internet Archive’s legal theories are certainly untested. There isn’t real legal precedent to guide this. For its part, the Internet Archive has said that they hope this can be resolved quickly, however, there are very real concerns that this fight could bankrupt the entire Internet Archive.
I do wonder if the authors who spoke out against this really want to shut down such an important institution just so they can sell a couple more books.