In a remarkable brief filed on July 7 in their ongoing lawsuit, four titans of corporate publishing (Hachette, Penguin Random House, HarperCollins, and Wiley) accused the Internet Archive of stealing, “mass-scale copyright infringement,” and “[distributing] full-text digital bootlegs for free.” Those are pretty wild allegations—especially considering that the Internet Archive’s Open Library operates on the traditional terms that libraries in this country have abided by for centuries. The Open Library loans books, which it owns, to one patron at a time, for a fixed period—just like any other library. Like any public library, the Open Library doesn’t charge money for this service. The main difference is that the Open Library loans e-books online. Each e-book is scanned from a paper copy, and the paper copy is stored away and doesn’t circulate; this practice is called Controlled Digital Lending, or CDL.
One book, lawfully bought or acquired, one scan, one patron at a time—no money changes hands. And yet the publishers’ brief does its best to cast the librarians of the Internet Archive as a gang of thieves and pirates.
In reality, the publishers’ attack on the Internet Archive is a Trojan horse for a very different, and radical, idea: that e-books are fundamentally—legally—different from paper books. If accepted, their argument would remove e-books from the many statutory protections upon which library rights positively depend. That outcome would leave libraries vulnerable to the draconian licensing deals under which e-books are increasingly offered. And libraries would have to pay and pay, in the absence of digital books that can be permanently bought and owned outright.
The publishers’ true goal appears right on page 6:
Controlled digital lending, as practiced by Internet Archive, collapses the boundaries between physical books and ebooks. CDL’s basic tenet is that a non-profit entity that owns a physical book can scan that book and distribute the resulting ebook as a proxy for the physical copy. But this ignores that ebooks are a fundamentally different product from physical books.
They may be a different product, but e-books are still books.
The real stakes in this lawsuit concern not digital piracy but the preservation of library rights; 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 and me and everyone else—will have to keep paying for them forever. Libraries will no longer be independent entities, free to make their own decisions about what to lend; they’ll be limited to whatever publishers want to offer—or not offer.
“We need strong and independent publishers,” says Internet Archive founder Brewster Kahle, “and we need strong and independent libraries.”
Because the statutory protections for libraries were written decades ago, when technical constraints on copying and distribution were entirely different from what they are now, preserving traditional library rights has presented challenges in the digital age. These issues were always going to be revisited in the courts, one way or another. In fact, in 2011, in her seminal paper on the legal framework that came to be known as CDL, legal scholar Michelle Wu foresaw this very lawsuit:
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[P]ublishers have used new technologies to exert control over works beyond the control they had over printed works. They are replacing ownership with licensing, where they can regulate not only the number of users but also the number of uses.… Given this trend toward greater control over material by publishers, it would be remarkable if the industry did not object to libraries’ digitizing printed materials.
Having anticipated the legal pushback from publishers, Wu observed that the spirit of the law is on the side of libraries: The Copyright Clause was adopted not only to protect authors but to promote the advancement of learning and public knowledge. “At the heart of copyright,” she wrote, “is the public good.”
In the years following the publication of Wu’s paper, a score of leading experts on copyright and libraries joined forces to create CDL, a whole legal toolkit for the traditional library lending of e-books developed with exactly these legal challenges in mind. The Internet Archive’s digital lending relies on CDL, and its reasoning is what is really being tested in the lawsuit.
Disingenuously, the publishers’ brief flatly misinterprets the long history and development of CDL: “Internet Archive…has searched for years to find a legal rationale for its radical infringements. Around 2018, it helped manufacture and market a theory called ‘controlled digital lending’ or ‘CDL.’”
“Publishers spend millions of dollars to make books available to the public,” according to their brief, and that is true. Publishers shepherd books into the world, providing a vitally important service for all. They have every right to profit fairly from their work. But they don’t have the right to change the laws protecting libraries.
Public-spiritedness, by the way, is a quality conspicuously missing from this document. Perhaps realizing they’d better choke out a statement of support for libraries in general, they were able to manage the following: “The Publishers deeply value libraries, recognizing that they foster public literacy, serve local communities, and increase the visibility of authors through book clubs, author talks, and other creative means of reader involvement. Libraries support authors by paying for print books and ebooks.”
They sure do! Libraries have become a huge cash cow for publishers, especially during the pandemic, when nobody could visit a physical library. They admit it themselves, in this very brief: “The publishers’ annual revenue from the library ebook market, which is shared with authors, has risen to hundreds of millions of dollars, simultaneously establishing an important market channel for many titles and serving a more digital public.”
I’m a writer, obviously, and I find it entirely startling that these powerful publishers have no discernible sense of responsibility to the public commons, nor of the symbiotic relationship that principled publishers in a free society should have with libraries. They’re supposed to be on the same side: the side of an educated, healthy and informed public. Publishers should be the champions of libraries, not their enemies.
“The right to exclude others,” according to legal scholars, is the key characteristic of private property. Or, to put it in lay terms, the right to keep other people’s mitts off of something is what makes that something yours. But the idea of private ownership has blurred in the Internet age. We’ve all seen how complex licenses have taken the place of sales, especially in the case of digital media like movies and music.
But there’s a deeper aspect of this question that should concern anyone who spends time and money in the digital world. Our rights over the digital property we do own have become much harder to define and protect, because digital property has grown increasingly intangible. Collections of images, documents, and music; details of your whereabouts, your tastes and habits; records of your transactions with governments and businesses—all this is valuable private property too. But instead of being stored in an old-fashioned bookcase or file cabinet, it’s invisible now, stored in your phone or laptop, and often outside of any kind of meaningful private control.
When all kinds of unknown and unknowable digital intruders can swoop into your devices without your knowledge—let alone consent—and help themselves to your transaction and location histories, follow you around the Internet, alter your software, or withdraw your access to digital books and songs (all based on the terms of some zillion-page End-User Agreement written expressly so that nobody in his right mind would even try to read it), there is no meaningful “right to exclude others.” We’re being made to forget what it means just to be in private control of the things that belong to us.
This amnesia regarding individual rights and freedoms is, paradoxically, part of what makes it possible for corporations to keep grabbing for more power. They aren’t experiencing any amnesia themselves: They’re looking to increase and strengthen their private control over the things they own.
It’s hard to protect what we can’t clearly see or know. But there’s every reason to ensure that digital property can continue to be owned outright, in the traditional way—by individuals, and by libraries in particular.
At a time when militant right-wingers are banning and censoring books, and even forcing the closure of public libraries, this lawsuit represents an immediate and serious threat to freedom of information and expression. You’d think the goon squad would let us go to hell in peace for the sin of reading Alison Bechdel or Art Spiegelman. But they won’t. So it’s of crucial importance to fight for libraries to retain their traditional rights to own, preserve, and lend books.
Not only should these publishers lose to the Internet Archive in court; they should be compelled to recognize the legitimacy of Controlled Digital Lending, and the legal equivalence between digital and paper books. Maybe then they might wake up and realize that they wouldn’t actually want to live in the kind of country they’re trying to make.
Note: From time to time, Maria Bustillos has acted as an informal, unpaid adviser to the Internet Archive.