The Ruling That Threatens the Future of Libraries

If civilization ever falls to a zombie apocalypse or nuclear Armageddon, we will need to have preserved centuries of accumulated practical knowledge to rise again. And if humanity should go extinct, leaving nothing but our legacy, the alien explorers who discover the ruins of our society would struggle to interpret human history without some great store of information to guide them.

Maybe these postapocalyptic scenarios are far-fetched, but even if society is never, say, drowned by the seas in some climate-driven disaster, leaving the remnants of humanity clinging to a few small bits of land, the massive collection of knowledge accumulated by the Internet Archive, comprising millions of books, is an invaluable resource.

By collecting and digitizing such a huge collection of works and lending them out online, the Internet Archive is making an incredible social contribution. The way the nonprofit manages that archive, however, has earned the wrath of book publishers. A few months into the coronavirus pandemic, when many physical libraries were closed, the IA began partnering with libraries to give users access to the IA’s collection, and removed digital limits on its lending. Several book publishers sued in June 2020, alleging a violation of copyright; the IA discontinued the practice a short time later.

[Dan Cohen: Libraries need more freedom to distribute digital books]

Last month, a federal court sided with the publishers; Judge John G. Koeltl wrote that the IA had simply “copied the Works in Suit wholesale for no transformative purpose and created ebooks that … competed directly with the licensed ebooks of the Works in Suit.” The ruling went beyond this to say that controlled digital lending, or CDL, violates copyright law.

That’s significant, because for the past decade or so, many U.S. libraries have engaged in CDL, by which a limited number of digital copies, based on the number of physical copies a library possesses, are loaned out. Users lose access to these digital copies after a set period of time. The crux of the publishers’ complaint is that they want to charge libraries fees for ebooks, and they can’t do that if the Internet Archive is allowing those libraries to loan out its scanned copies for free. The ebook licenses that publishers sell to libraries, by contrast, have to be renewed after a fixed number of loans or a certain period of time, and they are highly profitable.

“The Publishers reasonably expect to be compensated for the reproduction of their copyrighted works,” Koeltl wrote, “and IA stands to profit from its non-transformative exploitation of the Works in Suit.” Although the IA is a nonprofit, Koeltl wrote that the IA benefits directly because it uses “its Website to attract new members, solicit donations, and bolster its standing in the library community,” and because it is paid whenever someone uses the website’s “Buy from Better World Books” button to purchase from the IA-affiliated Better World Books store.

The IA, in response, contends that it is doing nothing more than what libraries have traditionally done, loaning out copies of books it has bought. The only difference is that the copies are digital, rather than physical. But with CDL, the IA does not loan out more digital or physical copies than the IA has purchased. The Internet Archive also argues that there’s no evidence this lending has affected the publishers’ profits, which the judge concluded was irrelevant to the underlying legal matter. “Libraries have been around for thousands of years; they are older than copyright law itself,” the Electronic Frontier Foundation, which is representing the IA, wrote in its brief. “Never in the history of the United States have libraries needed to obtain special permission or to pay license fees to lend the books they already own.”

If the ruling stands, the implications for libraries are disastrous. They will have to choose between purchasing licenses for ebooks from publishers for books they already carry every few years and expanding their collections. There should be a reasonable middle ground that is not publishers gouging libraries or giving away works for free en masse. If creating digital copies of books has “no transformative purpose,” it’s also true that ebook-licensing-fee renewals are little more than rent-seeking: The works themselves are unchanged, but the nature of digital delivery allows publishers to charge people in new ways.

Knowledge is too precious to be abandoned entirely to the whims of the profit motive. The Internet Archive’s large collection of out-of-print books is safe; its handling of newer works is the subject of the lawsuit. But in between these two categories are those books to which publishers continue to hold rights but that are not profitable enough for them to digitize, and may be difficult to find in physical libraries. The recent bowdlerization of older works by authors such as Roald Dahl and Agatha Christie illustrates another dilemma: Unlike ebooks, which can be altered by the publisher anytime it chooses, scans of physical books preserve the original. That is a problem shared by any nonphysical media sold through a license: You don’t really own it, so providers can restrict access or change the material in any manner they wish.  

As an author, I want to be paid for my work. If publishers cannot profit off book sales, they cannot pay authors, and if they cannot pay authors, fewer books will be written. But as an author, I have also found the Internet Archive incredibly useful, particularly as a way to consult books that are not in the public domain and are difficult to find.

[Xochitl Gonzalez: The librarians are not okay]

Like any library, the IA lends books, and in doing so, it helps other authors write more of them. There are few individual, physical places in which you can find Red Scare–era studies on loyalty oaths, a collection of essays by Black writers on Louis Farrakhan written at the height of his popularity in the 90s, and lengthy 19^th century justifications of American apartheid written by segregationists. Trying to access all these works in person might cost you several plane tickets. Although unlimited digital lending would unfairly prevent publishers and authors from profiting from their work, CDL seems like an appropriate compromise, one that resembles the way libraries already function.

The Internet Archive provides an invaluable service in digitizing precious but less commercially viable books and lending them out, because insufficient demand means the publishers will simply not make them available, and finding and using them for research might require travel. Although publishers could plausibly argue that such lending interferes with their profits, in practice they will never try to make money off ebooks of these works.

“These days, many patrons want and expect to have digital access to books. But publishers don’t choose to make their full catalogs available through ebook licensing, and they can manipulate availability as well to prioritize certain authors, subjects, etc.,” Corynne McSherry, an attorney for the Electronic Frontier Foundation, told me. “Without CDL, publishers will have unfair power over the future of books and libraries alike.”

The IA is appealing the decision, but defeat could mean millions in damages as well as attorneys’ fees for the publishers. McSherry noted that “there are legal provisions that allow damages to be limited where a library has acted on the good-faith belief that it was engaged in a lawful fair use, which the Internet Archive did, and does.”

Even if society never falls to the zombie hordes and the ruins of human civilization are never visited by alien archaeologists, the IA remains an irreplaceable resource for readers, scholars, and basically anyone who wants to learn. It is in such places that small sparks of inspiration have ignited eras of innovation and discovery. The fact that we can visit them without leaving our homes shouldn’t make a huge difference.