controlled digital lending – Techdirt (original) (raw)

Second Circuit Says Libraries Disincentivize Authors To Write Books By Lending Them For Free

from the this-can't-be-right dept

What would you think if an author told you they would have written a book, but they wouldn’t bother because it would be available to be borrowed for free from a library? You’d probably think they were delusional. Yet that argument has now carried the day in putting a knife into the back of the extremely useful Open Library from the Internet Archive.

The Second Circuit has upheld the lower court ruling and found that the Internet Archive’s Open Library is not fair use and therefore infringes on the copyright of publishers (we had filed an amicus brief in support of the Archive asking them to remember the fundamental purpose of copyright law and the First Amendment, which the Court ignored).

Even though this outcome was always a strong possibility, the final ruling is just incredibly damaging, especially in that it suggests that all libraries are bad for authors and cause them to no longer want to write. I only wish I were joking. Towards the end of the ruling (as we’ll get to below) it says that while having freely lent out books may help the public in the “short-term” the “long-term” consequences would be that “**there would be little motivation to produce new works.**”

Which is just all kinds of disconnected from reality. There is not a single person in the world who thinks “well, I would have written this book, except that it would be available for people to borrow for free from a library, so I guess I won’t.” Yet a three-judge panel on the Second Circuit concludes exactly that.

As you’ll recall, the Open Library is no different than a regular library. It obtains books legally (either through purchase or donation) and then lends out one-to-one copies of those books. It’s just that it lends out digital copies of them. To keep it identical to a regular library, it makes sure that only one digital copy can be lent out for every physical copy it holds. Courts have already determined that digitizing physical books is fair use, and the Open Library has been tremendously helpful to all sorts of people.

The only ones truly annoyed by this are the publishers, who have always hated libraries and have long seen the shift to digital as an open excuse to effectively harm libraries. With licensed ebooks, the publishers have jacked up the prices so that (unlike with regular books), the library can’t just buy a single copy from any supplier and lend it out. Rather, publishers have made it prohibitively expensive to get ebook licenses, which come with ridiculous restrictions on how frequently books can be lent and more.

It was clear that the only reason all the big publishers sued the Internet Archive was to put another nail in the coffin of libraries and push to keep this ebook licensing scheme grift going. Now the courts have helped.

This ruling from the Second Circuit pushed back a little bit on one of the most overbroad parts of the district court’s ruling. The judge there seemed to have decided how he was going to rule long before oral arguments even happened, as he published his ruling the very same week as the arguments, and he twisted things to favor the publishers on every single issue, even arguing that because the Internet Archive — a non-profit — asks for donations, that makes everything it does a “commercial activity.” However, this ruling is still really problematic, and arguably in significant conflict with other circuits.

The key part of the case is whether or not the Internet Archive’s scanning and lending of books is fair use. The Second Circuit says that it fails the fair use four factors test. On the question of transformative use, the Internet Archive argued that because it was using technology to make lending of books more convenient and efficient, it was clearly transformative. Unfortunately, the court disagrees:

We conclude that IA’s use of the Works is not transformative. IA creates digital copies of the Works and distributes those copies to its users in full, for free. Its digital copies do not provide criticism, commentary, or information about the originals. Nor do they “add[] something new, with a further purpose or different character, altering the [originals] with new expression, meaning or message.” Campbell, 510 U.S. at 579. Instead, IA’s digital books serve the same exact purpose as the originals: making authors’ works available to read. IA’s Free Digital Library is meant to―and does―substitute for the original Works

The panel is not convinced by the massive change in making physical books digitally lendable:

True, there is some “change” involved in the conversion of print books to digital copies. See Infinity Broadcast Corp. v. Kirkwood, 150 F.3d 104, 108 n.2 (2d Cir. 1998) (“[A] change in format . . . is not technically a transformation.”). But the degree of change does not “go beyond that required to qualify as derivative.” Warhol II, 598 U.S. at 529. Unlike transformative works, derivative works “ordinarily are those that re-present the protected aspects of the original work, i.e., its expressive content, converted into an altered form.” Google Books, 804 F.3d at 225. To be transformative, a use must do “something more than repackage or republish the original copyrighted work.” Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 96 (2d Cir. 2014); see also TVEyes, 883 F.3d at 177 (“[A] use of copyrighted material that merely repackages or republishes the original is unlikely to be deemed a fair use.” (internal quotation marks omitted)). Changing the medium of a work is a derivative use rather than a transformative one.

But, that’s not what a derivative work is? A derivative work is not scanning a book. Scanning a book is making a copy. A derivative work is something like making a movie out of a book. So, this analysis is just fundamentally wrong in saying that this is a derivative work, and thus the rest of the analysis is kinda wonky based on that error.

Tragically, the Court then undermines the important ruling in the Betamax/VCR case that found “time shifting” (recording stuff off your TV) to be fair use, even as it absolutely was repackaging the same content for the same purpose. The Court says that doesn’t matter because it “predated our use of the word ‘transformative’ as a term of art.” But that doesn’t wipe out the case as a binding precedent, even though the Court here acts as though it does.

Sony was decided long before modern technology made it possible for one to view virtually any content at any time. Put in context, the “time-shifting” permitted by the defendant’s tape recorders in Sony was a unique efficiency not widely available at the time, and certainly not offered by the plaintiff-television producer.

So because content is more widely available, this kind of shifting is no longer fair use? How does that make any sense at all?

Then the Court says (incorrectly — as we’ll explain shortly) that there’s really nothing new or different about what the Open Library does:

Here, by contrast, IA’s Free Digital Library offers few efficiencies beyond those already offered by Publishers’ own eBooks.

The problem, though, is that this isn’t quite true. Getting licensed ebooks out from libraries is a difficult and cumbersome practice and requires each library to have a vast ebook collection that none can possibly afford. As this lawsuit went down, more and more authors came out of the woodwork, explaining how research they had done for their books was only possible because of the Open Library and would have been impossible via a traditional library given the lending restrictions and availability restrictions.

The amazing writer Annalee Newitz just posted about how their recent (amazing) book on psyops was only possible by using the Open Library. Researcher/writer Molly White talks about how useful the Open Library has been to researchers and Wikipedia editors, enabling them to access content that simply isn’t readily available via regular libraries. As Jennie Rose Halperin wrote for us last year, people use the Open Library differently than regular libraries. The average user checks out a book for just 30 minutes, suggesting that it’s not actually a replacement for traditional libraries, but a useful tool for people who are doing research, as Annalee and Molly suggested with their examples.

It’s just wrong for the panel of judges to insist it’s a one-to-one replacement for libraries in terms of how it’s used by borrowers. And it’s not like libraries were complaining about this either. Libraries have been generally supportive of the Open Library (my local library has their own online catalog linked to the Open Library).

A separate way in which the Open Library is unique is that it allows writers and researchers and, well, anyone, to link directly to books, which is incredibly valuable. But the Court is not impressed, even though it barely goes into any details. It just says: “That authors of online articles may embed links to IA’s Free Digital Library does not render the Library a significantly transformative secondary use of the Works.”

From there, the Court explores whether or not the Internet Archive’s use here was commercial. The lower court said it was because, ridiculously, the Internet Archive had donation links on library pages. Thankfully, the panel here sees how problematic that would be for every non-profit:

We likewise reject the proposition that IA’s solicitation of donations renders its use of the Works commercial. IA does not solicit donations specifically in connection with its digital book lending services―nearly every page on IA’s website contains a link to “Donate” to IA. App’x 6091. Thus, as with its partnership with BWB, any link between the funds IA receives from donations and its use of the Works is too attenuated to render the use commercial. Swatch, 756 F.3d at 83. To hold otherwise would greatly restrain the ability of nonprofits to seek donations while making fair use of copyrighted works. See ASTM I, 896 F.3d at 449 (rejecting the argument that because free distribution of copyrighted industry standards enhanced a nonprofit organization’s fundraising appeal, the use was commercial).

It also disagrees that this use is commercial because there’s a referral link for people to go and buy a copy of the book, saying that’s “too attenuated”:

Any link between the funds IA receives from its partnership with BWB and its use of the Works is too attenuated for us to characterize the use as commercial on that basis

Even so, the lack of commerciality isn’t enough to protect the project on the first factor analysis, and it goes to the publishers.

On the second factor, the nature of the works, the Internet Archive tried to argue that because it was sharing knowledge from non-fiction books, this one should be neutral, favoring neither party. However, the Court says it doesn’t matter. Books are books, and so this also favors the publishers.

On the third factor, the amount shared, many people think this should obviously go to the publishers, given that it’s the entire books that are lent. But in the Google Books and HathiTrust cases, the court had said that this factor just means if the use is copying more than is necessary. Thus it’s okay to copy an entire work, if that’s what is necessary for the fair use in question. As such, it seems like this should go to the Open Library. But the Court sees it differently:

IA’s use is therefore unlike the copying that took place in HathiTrust and Google Books. In those cases, the defendants scanned copyrighted books to create, among other things, searchable databases that allowed users to view snippets of text pertaining to their search terms, or to learn on which pages and with what frequency their search terms appeared in any given book. HathiTrust, 755 F.3d at 91; Google Books, 804 F.3d at 208–10. Though the defendants copied the books in their entirety, doing so was necessary to achieve a transformative, secondary purpose―the searchable databases

This seems fundamentally incorrect. The panel is really incorporating its analysis on the first factor and substituting it for any real analysis on the third. Does the third factor regarding the amount copied differ if it is or is not transformative? Then if a court gets the first factor wrong, then by definition they will also get the third factor wrong, shifting at least half of the factors on that one point. That can’t be how the test is supposed to work.

Then, finally, we have the “impact on the market” question. This and the first factor tend to be the only ones that really matter in these analyses. The Archive insisted that there was no evidence of any actual harm to publishers from the Open Library. But, the panel here says “eh, we’re pretty sure it must harm publishers.”

Here, not only is IA’s Free Digital Library likely to serve as a substitute for the originals, the undisputed evidence suggests it is intended to achieve that exact result. IA copies the Works in full and makes those copies available to the public in their entirety. It does not do this to achieve a transformative secondary purpose, but to supplant the originals. IA itself advertises its digital books as a free alternative to Publishers’ print and eBooks. See, e.g., App’x 6099 (“[T]he Open Libraries Project ensures [libraries] will not have to buy the same content over and over, simply because of a change in format.” (internal quotation marks omitted)); id. at 6100 (marketing the Free Digital Library as a way for libraries to “get free ebooks”); id. at 6099 (“You Don’t Have to Buy it Again!”). IA offers effectively the same product as Publishers―full copies of the Works―but at no cost to consumers or libraries. At least in this context, it is difficult to compete with free.

But again, this analysis totally misses the underlying difference in scanned books vs. actual ebooks. If there’s a licensed ebook available, the experience for reading is way, way better than just dealing with a scan. Publishers absolutely can compete with free in this example.

I believe that the Court here is taking the Archive’s comment about “will not have to buy” completely out of context. Their argument is that when publishers change formats this offers a way to continue lending without having to repurchase content that they’ve already got. It’s the equivalent of the “time shifting” argument that was fair use in Sony, where all they’re doing is effectively shifting formats of content they already have legal access to, which should be fair use.

Furthermore, the Internet Archive presented even stronger evidence of the lack of harm:

IA’s expert, Dr. Rasmus Jørgensen, examined OverDrive checkouts of the Works before, during, and after the National Emergency Library (IA’s COVID-era program pursuant to which it lifted its one-to-one owned-to-loaned ratio, allowing each digital book to be checked out by up to 10,000 users at a time without regard to the corresponding number of physical books in storage or in partner libraries’ possession) to assess potential harm to Publishers’ eBook licensing market. If IA’s lending were indeed a substitute for Publishers’ library eBook licenses, he theorized, then the shutdown of the NEL and reinstitution of IA’s lending controls should correspond to an increase in demand for the Works on OverDrive (the commercial service used by many libraries who license eBooks). But Dr. Jørgensen found the opposite: OverDrive checkouts of the Works decreased following the shutdown of the NEL in June 2020. From this, IA concludes that its lending “has no effect on demand for borrowing on OverDrive” and, therefore, there is “no reason to imagine, much less assume, that digital lending affects Publishers’ ebook license revenue at all.”

[….]

IA also submits the expert report of Dr. Imke Reimers, who examined the effect of IA’s lending on Amazon sales rankings for print copies of the Works. Dr. Reimers analyzed whether Amazon sales rankings changed when IA (1) first added the Work to its Free Digital Library, (2) launched the NEL, or (3) removed the Work from its Free Digital Library in response to this lawsuit. She found “no statistically significant evidence” that either inclusion in IA’s library or increased lending through the NEL harmed print sales rankings on Amazon, and that removal of the Works from IA’s Free Digital Library actually correlated with a decrease in sales rankings of the Works on Amazon. App’x 4934. From this and Dr. Jørgensen’s report, IA concludes that its Free Digital Library has no effect on Publishers’ markets for print and eBooks.

But the Court dismisses both of these, saying that there could be many reasons for the results that have nothing to do with the changes to the Archive’s lending practices. And it says that the Amazon comparison is meaningless because it was about physical books, not ebooks.

So after complaining that this evidence is weak, it accepts the publishers’ argument that they were harmed even though they presented no actual evidence to support that claim. So, weak evidence is no good for the Internet Archive and the publishers get away with presenting no evidence at all.

Although they do not provide empirical data of their own, Publishers assert that they (1) have suffered market harm due to lost eBook licensing fees and (2) will suffer market harm in the future if IA’s practices were to become widespread.

[…..]

We are likewise convinced that “unrestricted and widespread conduct of the sort engaged in by [IA] would result in a substantially adverse impact on the potential market for [the Works in Suit].” Campbell, 510 U.S. at 590 (cleaned up). IA’s Free Digital Library serves as a satisfactory substitute for the original Works. Were we to approve IA’s use of the Works, there would be little reason for consumers or libraries to pay Publishers for content they could access for free on IA’s website. See Warhol I, 11 F.4th at 50. Though Publishers have not provided empirical data to support this observation, we routinely rely on such logical inferences where appropriate in assessing the fourth fair use factor.

Again, this is wrong. I always borrow official ebooks from my library when possible, rather than the Open Library, just because the quality is so much better. I only switch over to the Open Library when such ebooks are not available via my library. But the false assumption, which the Second Circuit buys into, is that there zero difference between the files.

And that’s just fundamentally wrong.

It also seems in pretty direct conflict with what the DC Circuit said last year in the case about whether or not Public Resource could publish standards that have been incorporated into law. In that case, on this fourth factor, they found that just because identical digital copies could be downloaded, it did not mean that the market was negatively impacted. That court noted that the publishers in that case could not show any evidence of harm (indeed, in some cases, their sales had increased).

But this panel brushes that off, saying the burden of proof was on the Archive and it failed, so it doesn’t matter that the publishers offered nothing:

To the extent IA faults Publishers’ lack of empirical data, it forgets the burden of proof. Recall the broader context: Publishers have already established a prima facie case of copyright infringement. The only issue in this appeal is whether IA’s Free Digital Library constitutes a fair use of the Works. “Fair use is an affirmative defense; as such, the ultimate burden of proving that the secondary use does not compete in the relevant market is appropriately borne by the party asserting the defense: the secondary user.” Warhol I, 11 F.4th at 49. While the rightsholder may bear some initial burden of identifying relevant markets, “we have never held that the rightsholder bears the burden of showing actual market harm.” Id. Publishers need not present empirical data of their own in connection with IA’s asserted affirmative defense

Then it goes on to say that the nature of the works is different in that case, but the “nature of the works” is a different factor. So, again, this panel seems to want to keep mixing up the factors.

The final part of the ruling really is a tragic insult to the public. The Internet Archive made a final argument that the library should be allowed to continue given its substantial public benefit. But the Court, ridiculously, claims that the public gets a greater benefit from the library being shut down, and mocks the idea that expanding access to the public is all that important.

Indeed, this next section is going to do tremendous damage to fights for an open internet and against copyright maximalism and how it locks up knowledge. This whole section is basically writing the public benefit out of copyright law, even though benefiting the public is the entire purpose of copyright law. And, on top of it, it argues that libraries disincentivize authors by offering books for free. Which is crazy.

We conclude that both Publishers and the public will benefit if IA’s use is denied.

To be sure, expanding access to knowledge would, in a general sense, benefit the public. But “[a]ny copyright infringer may claim to benefit the public by increasing public access to the copyrighted work.” Harper & Row, 471 U.S. at 569. That does not alone render the infringement lawful. Indeed, the Copyright Act and its empowering constitutional authority reflect a considered judgment that “the Progress of Science and useful Arts” is best promoted by laws that protect authors’ original works and permit authors to set the terms of engagement, at least for a limited time. See Sony, 464 U.S. at 429. Doing so benefits the public “by providing rewards for authorship.” Google Books, 804 F.3d at 212. This monopolistic power is a feature, not a bug, of the Copyright Act.

Within the framework of the Copyright Act, IA’s argument regarding the public interest is shortsighted. True, libraries and consumers may reap some short-term benefits from access to free digital books, but what are the long-term consequences? If authors and creators knew that their original works could be copied and disseminated for free, there would be little motivation to produce new works. And a dearth of creative activity would undoubtedly negatively impact the public. It is this reality that the Copyright Act seeks to avoid.

That bolded line in that paragraph there is exactly what the publishers wanted: a knife in the back of libraries. It’s literally saying “sure, libraries may benefit the public, but if they continue who will continue to write?”

This is completely disconnected from reality. What authors choose not to write because their book is available to be freely borrowed from a library? None. And yet, this is now precedent in the Second Circuit.

It’s a fantasyland claim.

Again, the Open Library works in a manner no different from any regular library from the point of view of a publisher or author. A book is purchased or donated (the publisher and the author therefore get their money) and then it can be lent out. This is literally no different than how an author is compensated from a regular library.

If the bolded comments above are true for the Open Library, they must also be true for a regular library. Yet, I guarantee that not a single author chooses not to write because their books are available in a library to be lent out for free.

This is the part that really destroys me in this ruling. It takes a completely nonsensical claim and insists that it’s true. It’s fantasyland thinking and it effectively puts the knife in the back of libraries.

I imagine the Archive will seek cert at the Supreme Court, but who knows what will happen there. The Supreme Court hasn’t been great on fair use lately. The better answer is that Congress should fix this and make it clear that copyright law blesses this kind of open digital lending, though the copyright industries would throw a shitfit if anyone even dared propose such a bill.

This ruling is a huge loss for public access to knowledge and for libraries.

Filed Under: 2nd circuit, commercial use, controlled digital lending, copyright, fair use, libraries, open library, scanning, transformative use
Companies: hachette, internet archive

500,000 Books Have Been Deleted From The Internet Archive’s Lending Library

from the a-modern-book-burning,-courtesy-of-the-publishers dept

If you found out that 500,000 books had been removed from your local public library, at the demands of big publishers who refused to let them buy and lend new copies, and were further suing the library for damages, wouldn’t you think that would be a major news story? Wouldn’t you think many people would be up in arms about it?

It’s happening right now with the Internet Archive, and it’s getting almost no attention.

As we’ve discussed at great length, the Internet Archive’s Open Library system is indistinguishable from the economics of how a regular library works. The Archive either purchases physical books or has them donated (just like a physical library). It then lends them out on a one-to-one basis (leaving aside a brief moment where it took down that barrier when basically all libraries were shut down due to pandemic lockdowns), such that when someone “borrows” a digital copy of a book, no one else can borrow that same copy.

And yet, for all of the benefits of such a system in enabling more people to be able to access information, without changing the basic economics of how libraries have always worked, the big publishers all sued the Internet Archive. The publishers won the first round of that lawsuit. And while the court (somewhat surprisingly!) did not order the immediate closure of the Open Library, it did require the Internet Archive to remove any books upon request from publishers (though only if the publishers made those books available as eBooks elsewhere).

As the case has moved into the appeals stage (where we have filed an amicus brief), the Archive has revealed that around 500,000 books have been removed from the open library.

The Archive has put together an open letter to publishers, requesting that they restore access to this knowledge and information — a request that will almost certainly fall on extremely deaf ears.

We purchase and acquire books—yes, physical, paper books—and make them available for one person at a time to check out and read online. This work is important for readers and authors alike, as many younger and low-income readers can only read if books are free to borrow, and many authors’ books will only be discovered or preserved through the work of librarians. We use industry-standard technology to prevent our books from being downloaded and redistributed—the same technology used by corporate publishers.

But the publishers suing our library say we shouldn’t be allowed to lend the books we own. They have forced us to remove more than half a million books from our library, and that’s why we are appealing.

The Archive also has a huge collection of quotes from people who have been impacted negatively by all of this. Losing access to knowledge is a terrible, terrible thing, driven by publishers who have always hated the fundamental concept of libraries and are very much using this case as an attack on the fundamental principle of lending books.

Tran D. A., Ha Tinh, Vietnam: It hampers my ability to look up data sources. Books in Vietnam are significantly less accessible and my economic background doesn’t allow me to afford these things.

R.F., Surrey, Canada: As a Wikipedia editor, the Internet Archive is one of the most useful tools to find citations and verify facts. By removing books from the Internet Archive, it hinders the ability to find sources for an open encyclopedia.

Meilan S., Washington, DC, USA: As the online history editor at a national magazine, I use the Internet Archive on an almost daily basis. It’s an invaluable tool for accessing books cited by my writers, conducting research for articles I’m writing, and fact-checking quotes and other information. I regularly link to the Internet Archive in our published content, as I believe we should be as transparent as possible regarding sourcing, in addition to offering readers links to sites where they can learn more about a given topic. It has been disheartening to find the majority of books I need to access for work now listed as “removed.” The removal of this content makes it more difficult for me to include diverse, in-depth and reliable sources in my writing and editing.

Tamia T., Montreal, Canada: Internet Archive gives me access to scholarly information that is not afforded to those outside of the post-secondary education system. The Internet Archive helps bridge the gap when it comes to literacy, comprehension of history, and the discovery of new works that are otherwise gate-kept from the average person.

None of this will stop false stories making the rounds that the Open Library is a form of “piracy.” But it needs to be clearly communicated that this lawsuit is 100% about killing the very concept of libraries.

And, why? Because copyright and DRM systems allow publishers to massively overcharge for eBooks. This is what’s really the underlying factor here. Libraries in the past could pay the regular price for a book and then lend it out. But with eBook licensing, they are able to charge exorbitant monopoly rents, while artificially limiting how many books libraries can even buy.

I don’t think many people realize the extreme nature of the pricing situation here. As we’ve noted, a book that might cost 29.99retailcancost29.99 retail can cost 29.99retailcancost1,300 for an eBook license, and that license may include restrictions, such as having to relicense after a certain number of lends, or saying a library may only be allowed to purchase a single eBook license at a time.

The ones who changed the way libraries work is not the Internet Archive. It’s the publishers. They’re abusing copyright and DRM to fundamentally kill the very concept of a library, and this lawsuit is a part of that strategy.

Filed Under: book lending, controlled digital lending, copyright, ebooks, libraries
Companies: hachette, internet archive

Internet Archive Files Opening Brief In Its Appeal Of Book Publishers’ Win

from the let-the-library-do-what-libraries-do dept

A few weeks ago, publishing giant Penguin Random House (and, yes, I’m still confused why they didn’t call it Random Penguin House after the merger) announced that it was filing a lawsuit (along with many others) against the state of Iowa for its attempt to ban books in school libraries. In its announcement, Penguin Random House talked up the horrors of trying to limit access to books in schools and libraries:

The First Amendment guarantees the right to read and to be read, and for ideas and viewpoints to be exchanged without unreasonable government interference. By limiting students’ access to books, Iowa violates this core principle of the Constitution.

“Our mission of connecting authors and their stories to readers around the world contributes to the free flow of ideas and perspectives that is a hallmark of American Democracy—and we will always stand by it,” says Nihar Malaviya, CEO, Penguin Random House. “We know that not every book we publish will be for every reader, but we must protect the right for all Americans, including students, parents, caregivers, teachers, and librarians to have equitable access to books, and to continue to decide what they read.”

That’s a very nice sentiment, and I’m glad that Penguin Random House is stating it, but it rings a little hollow, given that Penguin Random House is among the big publishers suing to shut down the Internet Archive, a huge and incredibly useful digital library that actually has the mission that Penguin Random House’s Nihar Malaviya claims is theirs: connecting authors and their stories to readers around the world, while contributing to the free flow of ideas and perspectives that are important to the world. And, believing in the importance of equitable access to books.

So, then, why is Penguin Random House trying to kill the Internet Archive?

While we knew this was coming, last week, the Internet Archive filed its opening brief before the 2nd Circuit appeals court to try to overturn the tragically terrible district court ruling by Judge John Koeltl. The filing is worth reading:

Publishers claim this public service is actually copyright infringement. They ask this Court to elevate form over substance by drawing an artificial line between physical lending and controlled digital lending. But the two are substantively the same, and both serve copyright’s purposes. Traditionally, libraries own print books and can lend each copy to one person at a time, enabling many people to read the same book in succession. Through interlibrary loans, libraries also share books with other libraries’ patrons. Everyone agrees these practices are not copyright infringement.

Controlled digital lending applies the same principles, while creating new means to support education, research, and cultural participation. Under this approach, a library that owns a print book can scan it and lend the digital copy instead of the physical one. Crucially, a library can loan at any one time only the number of print copies it owns, using technological safeguards to prevent copying, restrict access, and limit the length of loan periods.

Lending within these limits aligns digital lending with traditional library lending and fundamentally distinguishes it from simply scanning books and uploading them for anyone to read or redistribute at will. Controlled digital lending serves libraries’ mission of supporting research and education by preserving and enabling access to a digital record of books precisely as they exist in print. And it serves the public by enabling better and more efficient access to library books, e.g., for rural residents with distant libraries, for elderly people and others with mobility or transportation limitations, and for people with disabilities that make holding or reading print books difficult. At the same time, because controlled digital lending is limited by the same principles inherent in traditional lending, its impact on authors and publishers is no different from what they have experienced for as long as libraries have existed.

The filing makes the case that the Internet Archives use of controlled digital lending for eBooks is protected by fair use, leaning heavily on the idea that there is no evidence of harm to the copyright holders:

First, the purpose and character of the use favor fair use because IA’s controlled digital lending is noncommercial, transformative, and justified by copyright’s purposes. IA is a nonprofit charity that offers digital library services for free. Controlled digital lending is transformative because it expands the utility of books by allowing libraries to lend copies they own more efficiently and borrowers to use books in new ways. There is no dispute that libraries can lend the print copy of a book by mail to one person at a time. Controlled digital lending enables libraries to do the same thing via the Internet—still one person at a time. And even if this use were not transformative, it would still be favored under the first factor because it furthers copyright’s ultimate purpose of promoting public access to knowledge—a purpose libraries have served for centuries.

Second, the nature of the copyrighted works is neutral because the works are a mix of fiction and non-fiction and all are published.

Third, the amount of work copied is also neutral because copying the entire book is necessary: borrowing a book from a library requires access to all of it.

Fourth, IA’s lending does not harm Publishers’ markets. Controlled digital lending is not a substitute for Publishers’ ebook licenses because it offers a fundamentally different service. It enables libraries to efficiently lend books they own, while ebook licenses allow libraries to provide readers temporary access through commercial aggregators to whatever selection of books Publishers choose to make available, whether the library owns a copy or not. Two experts analyzed the available data and concluded that IA’s lending does not harm Publishers’ sales or ebook licensing. Publishers’ expert offered no contrary empirical evidence.

Weighing the fair use factors in light of copyright’s purposes, the use here is fair. In concluding otherwise, the district court misunderstood controlled digital lending, conflating it with posting an ebook online for anyone to access at any time. The court failed to grasp the key feature of controlled digital lending: the digital copy is available only to the one person entitled to borrow it at a time, just like lending a print book. This error tainted the district court’s analysis of all the factors, particularly the first and fourth. The court compounded that error by failing to weigh the factors in light of the purposes of copyright.

Not surprisingly, I agree with the Internet Archives’ arguments here, but these kinds of cases are always a challenge. Judges have this weird view of copyright law, that they sometimes ignore the actual law, the purpose of the law, and the constitutional underpinnings of the law, and insist that the purpose of copyright law is to award the copyright holders as much money and control as possible.

That’s not how copyright is supposed to work, but judges sometimes seem to forget that. Hopefully, the 2nd Circuit does not. The 2nd Circuit, historically, has been pretty good on fair use issues, so hopefully that holds in this case as well.

The full brief is (not surprisingly) quite well done and detailed and worth reading.

And now we’ll get to see whether or not Penguin Random House really supports “the free flow of ideas” or not…

Filed Under: archives, controlled digital lending, copyright, ebooks, fair use, lending books, libraries, transformative use
Companies: hachette, internet archive, penguin random house

Internet Archive Kicks Off Its Appeal Over Publishers Attempt To Kill The Site

from the protect-our-libraries dept

Back in March we were greatly dismayed by the the ruling in Hachette v. the Internet Archive over the legality of “controlled digital lending” and the Archive’s “Open Library.” It seemed clear that Judge John Koeltl did not understand some of the fundamentals of fair use (it also appeared that he went into their oral arguments with his decision made up, as he issued a 47-page ruling the very same week — which almost never happens). Koeltl’s analysis left a lot to be desired, as it really seemed to go against an awful lot of fair use precedent.

Judge Koeltl issued his injunction this summer which was, perhaps surprisingly, not as far reaching as the publishers wanted (they wanted the entire Open Library project effectively shut down, and the judge said only books that had ebooks available would have to be taken out of the Open Library).

As expected, the Internet Archive has now officially filed for its appeal in the case, and it has helpfully uploaded its notice of appeal to the Archive itself. This is going to be a big deal and worth following. The 2nd Circuit has a history of being friendly towards fair use arguments, but not overly so. That means it has made some key rulings in favor of fair use, but it also has made some pretty bad rulings against fair use over the years. So… who knows how this will go.

However, it will be an incredibly important case for the future of not just the Archive itself, but the future of libraries as well.

Filed Under: 2nd circuit, controlled digital lending, copyright, fair use, libraries, open library
Companies: hachette, internet archive

Publishers Get One Step Closer To Killing Libraries

from the fair-use-needs-to-mean-something dept

Last Monday was the day of the oral arguments in the Big Publishers’ lawsuit against libraries in the form of the Internet Archive. As we noted mid-week, publishers won’t quit until libraries are dead. And they got one step closer to that goal on Friday, when Judge John Koetl wasted no time in rejecting every single one of the Internet Archive’s arguments.

The fact that the ruling came out on the Friday after the Monday oral arguments suggests pretty strongly that Judge Koeltl had his mind made up pretty quickly and was ready to kill a library with little delay. Of course, as we noted just last Wednesday, whoever lost at this stage was going to appeal, and the really important stuff was absolutely going to happen at the 2nd Circuit appeals court. It’s just that now the Internet Archives, and a bunch of important copyright concepts, are already starting to be knocked down a few levels.

I’ve heard from multiple people claiming that of course the Internet Archive was going to lose, because it was scanning books (!!) and lending them out and how could that be legal? But, the answer, as we explained multiple times, is that every piece of this copyright puzzle had already been deemed legal.

And the Internet Archive didn’t just jump into this without any thought. Two of the most well known legal scholars regarding copyright and libraries, David Hansen and Kyle Courtney, had written a white paper detailing exactly how and why the approach the Internet Archive took with Controlled Digital Lending easily fit within the existing contours and precedents of copyright law.

But, as we and others have discussed for ages, in the copyright world, there’s a long history of courts ignoring what the law actually says and just coming up with some way to say something is infringement if it feels wrong to them. And that’s what happened here.

A key part of the ruling, as in a large percentage of cases that are about fair use, is looking at whether or not the use of the copy is “transformative.” Judge Koeltl is 100% positive it is not transformative.

There is nothing transformative about IA’s copying and unauthorized lending of the Works in Suit.7 IA does not reproduce the Works in Suit to provide criticism, commentary, or information about them. See 17 U.S.C. § 107. IA’s ebooks do not “add[] something new, with a further purpose or different character, altering the [originals] with new expression, meaning or message.” Campbell, 510 U.S. at 579. IA simply scans the Works in Suit to become ebooks and lends them to users of its Website for free. But a copyright holder holds the “exclusive[] right” to prepare, display, and distribute “derivative works based upon the copyrighted work.”

But… there’s a lot more to “transformative” use than simply adding something new or altering the meaning. In many cases, fair use is found in cases where you’re copying the exact same content, but for a different purpose, and the Internet Archive’s usage here seems pretty clearly transformative in that it’s changing the way the book can be consumed to make it easier for libraries to lend it out and patrons to read it. That is, the “transformation” is in the way the book can be lent, not the content of the book.

I know many people find this strange (and the judge did here as well) saying things like “but it’s the whole work.” Or “the use is the same because it’s still just reading the book.” But the Supreme Court already said, quite clearly, that such situations can be fair use, such as in the Sony v. Universal case that decided VCRs were legal, and that time shifting TV shows was clear fair use. In that ruling, they even cite Congress noting that “making a copy of a copyright work for… convenience” can be considered fair use.

Unfortunately, Judge Koeltl effectively chops away a huge part of the Sony ruling in insisting that this is somehow different.

But Sony is plainly inapposite. IA is not comparable to the parties in Sony — either to Sony, the alleged contributory copyright infringer, or to the home viewers who used the Betamax machine for the noncommercial, nonprofit activity of watching television programs at home. Unlike Sony, which only sold the machines, IA scans a massive number of copies of books and makes them available to patrons rather than purchasing ebook licenses from the Publishers. IA is also unlike the home viewers in Sony, who engaged in the “noncommercial, nonprofit activity” of viewing at a more convenient time television programs that they had the right to view for free at the time they were originally broadcast. 464 U.S. at 449. The home viewers were not accused of making their television programs available to the general public. Although IA has the right to lend print books it lawfully acquired, it does not have the right to scan those books and lend the digital copies en masse.

But note what the Judge did here. Rather than rely on the text of what the Supreme Court actually said in Sony, he insists that he won’t apply the rules of Sony because the parties are different. But if the basic concepts and actions are covered by the Sony ruling, it seems silly to ignore them here as the judge did.

And the differences highlighted by the court here have no bearing on the actual issues and the specifics of fair use and the law. I mean, first of all, the fact that Koeltl claims that the Internet Archive is not engaged in “noncommercial, nonprofit activity” is just weird. The Internet Archive is absolutely engaged in noncommerical, nonprofit activity.

The other distinctions are meaningless as well. No, IA is not building devices for people to buy, but in many ways IA’s position here should be seen as stronger than Sony’s because Sony actually was a commercial operation, and IA is literally acting as a library, increasing the convenience for its patrons, and doing so in a manner that is identical to lending out physical books. Sony created a machine, Betamax, that copied TV shows and allowed those who bought those machines to watch the show at a more convenient time. IA created a machine that copies books, and allows library patrons to access those books in a more convenient way.

Also, the Betamax (and VCR) were just as “available to the general public” as the Internet Archive is. The idea that they are substantially different is just… weird. And strikes me as pretty clearly wrong.

There’s another precedential oddity in the ruling. It relies pretty heavily on the somewhat terrible fair use ruling in the 2nd Circuit in the Warhol Foundation v. Goldsmith case. That case was so terrible that we (at the Copia Institute) weighed in with the Supreme Court to let them know how problematic it was, and the Supreme Court is still sitting on a decision in that case.

Which means the Supreme Court is soon to rule on it, and that could very much change or obliterate the case that Judge Koeltl leans on heavily for his ruling.

Here, Judge Koeltl repeatedly goes back to the Warhol well to make various arguments, especially around the question of the fourth fair use factor: the effect on the market. To me, this clearly weighs towards fair use, because it’s no different than a regular library. Libraries are allowed to buy (or receive donated) books and lend them out. That’s all the Open Library does here. So to argue there’s a negative impact on the market, the publishers rely on the fact that they’ve been able to twist and bend copyright law so much that they’ve created a new, extortionate market in ebook “licenses,” and then play all sorts of games to force people to buy the books rather than check them out of the library.

Judge Koeltl seems particularly worried about how much damage this could do this artificially inflated market:

It is equally clear that if IA’s conduct “becomes widespread, it will adversely affect the potential market for the” Works in Suit. Andy Warhol Found., 11 F.4th at 48. IA could expand the Open Libraries project far beyond the current contributing partners, allowing new partners to contribute many more concurrent copies of the Works in Suit to increase the loan count. New organizations like IA also could emerge to perform similar functions, further diverting potential readers and libraries from accessing authorized library ebooks from the Publishers. This plainly risks expanded future displacement of the Publishers’ potential revenues.

But go back and read that paragraph again, and replace the key words to read that if libraries become widespread, it will adversely affect the potential market for buying books in bookstores… because libraries would be “diverting potential readers” from purchasing physical books, which “plainly risks expanded future displacement of the Publishers’ potential revenues.”

Again, the argument here is effectively that libraries themselves shouldn’t be allowed. And that seems like a problem?

Koeltl also falls into the ridiculous trap of saying that “you can’t compete with free” and that libraries will favor CDL-scanned books over licensed ones:

An accused infringer usurps an existing market “where the infringer’s target audience and the nature of the infringing content is the same as the original.” Cariou, 714 F.3d at 709; see also Andy Warhol Found., 11 F.4th at 50. That is the case here. For libraries that are entitled to partner with IA because they own print copies of books in IA’s collection, it is patently more desirable to offer IA’s bootleg ebooks than to pay for authorized ebook licenses. To state the obvious, “ [i]t is difficult to compete with a product offered for free.” Sony BMG Music Ent. v. Tenenbaum, 672 F. Supp. 2d 217, 231 (D. Mass. 2009).

Except that’s literally wrong. The licensed ebooks have many features that the scanned ones don’t. And many people (myself included!) prefer to check out licensed ebooks from our local libraries rather than the CDL ones, because they’re more readable. My own library offers the ability to check out books from either one, and defaults to recommending the licensed ebooks, because they’re a better customer experience, which is how tons of products “compete with free” all the time.

I mean, not to be simplistic here, but the bottled water business in the US is an over $90 billion market for something most people can get for free (or effectively free) from the tap. That’s three times the size of the book publishing market. So, uh, maybe don’t say “it’s difficult to compete with free.” Other industries do it just fine. The publishers are just being lazy.

Besides, based on this interpretation of Warhol, basically anyone can destroy fair use by simply making up some new, crazy, ridiculously priced, highly restrictive license that covers the same space as the fair use alternative, and claim that the alternative destroys the “market” for this ridiculous license. That can’t be how fair use works.

Anyway, one hopes first that the Supreme Court rejects the terrible 2nd Circuit ruling in the Warhol Foundation case, and that this in turn forces Judge Koeltl to reconsider his argument. But given the pretzel he twisted himself into to ignore the Betamax case, it seems likely he’d still find against libraries like the Internet Archive.

Given that, it’s going to be important that the 2nd Circuit get this one right. As the Internet Archive’s Brewster Kahle said in a statement on the ruling:

“Libraries are more than the customer service departments for corporate database products. For democracy to thrive at global scale, libraries must be able to sustain their historic role in society—owning, preserving, and lending books.

This ruling is a blow for libraries, readers, and authors and we plan to appeal it.”

What happens next is going to be critical to the future of copyright online. Already people have pointed out how some of the verbiage in this ruling could have wide reaching impact on questions about copyright in generative AI products or many other kinds of fair use cases.

One hopes that the panel on the 2nd Circuit doesn’t breezily dismiss these issues like Judge Koeltl did.

Filed Under: controlled digital lending, copyright, ebooks, fair use, john koetl, libraries, licensing, transformative use
Companies: association of american publishers, internet archive

Book Publishers Won’t Stop Until Libraries Are Dead

from the defend-libraries dept

Earlier this week there was finally a hearing in the case brought by the big book publishers to kill off libraries. That, of course, is not how the publishers describe the lawsuit, but it’s absolutely what the lawsuit is about.

We’ll get to some of the details in a moment, but we’ve joked in the past that if libraries were new today there’s no way that book publishers would let them exist. In some ways they’re a legacy holdover from before publishers had that much power. The attack on controlled digital lending (CDL) more or less proves this.

As much as publishers like to claim they “love libraries,” their actions here speak quite clearly that they would destroy them if they could. Controlled digital lending is no different from how a library lends out books today. In both cases, it gets a physical copy of the book (either through purchase or donation), and then proceeds to lend out that copy. With a physical library it’s literally that physical copy. With CDL it’s a scan of that book, but the scan is tied to the physical copy, so that if a digital copy is loaned out, no one else can take out another copy.

Every part of that has been deemed legal. Copyright law already has first sale rights, written directly into the law and allow for the lending or reselling of copyright-covered works without a license or permission. Similarly libraries are given explicit rights to make copies, so long as those collections are made available to the public. On top of that, courts have determined, multiple times, that book scanning itself is fair use for libraries.

So, literally each separate component of what is happening with Controlled Digital Lending has already been deemed to be legal and exactly what we expect libraries to do.

To counter this, publishers (and their supporters, which unfortunately include some authors) argue that (1) this interferes with the market for licensed ebooks, and (2) that there is a real difference in lending out the digital scans: that they don’t deteriorate the way that physical books do.

There are simple answers to both of these. First, (1) is a preposterous argument because (yet again) you could say the exact same thing for regular, existing libraries. The question is not must copyright enable any market. It’s whether or not copyright allows certain behaviors, and here it absolutely does. And that doesn’t even get into the fact that the big publishers have turned licensed ebooks for libraries into an extortionate, nonsense scheme to effectively block libraries from lending ebooks at all. If anything, what’s happened in the market for licensed ebooks to libraries actually helps to prove why we need controlled digital lending in the first place.

As for (2) that argument is also garbage for a number of reasons, most notably that official ebooks are just generally way more useful than the scanned ebooks anyway. The formatting is better, they’re designed to work better on ebook readers which provide additional features. In almost every case, scanned CDL books are a second-best choice compared to what else is available. In other words, it’s most likely only used when other options aren’t readily available.

Update: After this post was written, but before it was published, one of the authors of this book published a post on Facebook saying that the copyright license text discussed below was a mistake and was removed in future copies. I’m leaving the overall text here to note the kind of attitude, but will note that they disclaim it (though their explanation does not make much sense, as I can’t see why a “formatter” would add text, or why its “intention” made any sense either. I have removed the images of used copies for sale at the end of this article, however. Either way, here is the original text which is still representative of how some people view copyright: But, again, the legacy book publishing world is really admitting they hate libraries. Somewhat incredibly-timed, the same day as the hearing in this lawsuit, a tweet went viral highlighting a laughably wrong copyright statement from a “dark fantasy romance series” called “Zodiac Academy.” The verbiage on the copyright page is so over the top that it made me wonder if it was parody:

It reads:

This book is licensed for your personal enjoyment only.

This book may not be re-sold or given away to other people. If you would like to share this book with another person, please purchase an additional copy for each recipient. If you’re reading this book and did not purchase it, or it wasn’t purchased for your use only, then please return to your favorite book retailer and purchase your own copy. Thank you for respecting the hard work of this author.

All rights reserved.

That’s not how any of this works. The very next line says “This is a work of fiction” which is supposed to apply to the book itself, but could accurately be used to describe the “license” claims above it. A license for written works is limited to what the author can claim under copyright law, and as noted above, none of what is claimed here is allowed under copyright law, meaning that this license itself is a form of copyfraud: it attempts to limits a users’ own rights through deception regarding the actual limits of copyright law.

This particular bit of nonsense has shown up on Reddit in the past as well, but went even more viral this time, and at a perfect time to highlight just how much the modern publishing industry absolutely would destroy libraries if given the opportunity.

And that brings us to the hearing. You never quite know how a judge is going to rule, and from the descriptions of the arguments in court it sounds like Judge John Koeltl asked tough questions of both sides. He challenged the publishers to explain if they had any evidence that the Internet Archive’s Open Library caused them any harm (as their own bottom lines grew massively after it was opened).

However, he also questioned whether or not the Internet Archive really has the right to make copies. The answer to that question should be obviously yes, based on the law and the case law on this matter, but you never know how judges will rule. The publishers, for their part, tried to argue away their successful pandemic run by arguing… they should have made even more money:

During this same time, however, the book publishing industry experienced so much demand that revenues rose by 12 percent, amounting to a $3 billion spike in sales by 2021, Publishers Weekly reported. Because publishers profited when the National Emergency Library was made available, Koeltl pushed back on McNamara, asking how to reconcile the surge in profits with allegations of harm caused.

McNamara seemed to suggest that publishers would have been further enriched if not for IA providing unprecedented free, unlimited e-books access. She also told Koeltl that publishers suing—Hachette, HarperCollins, Penguin Random House, and Wiley—are concerned that there are already some libraries avoiding paying e-book licensing fees by partnering with IA and making their own copies. If the court sanctioned IA’s digitization practices and thousands of libraries started digitizing the books in their collections, the entire e-book licensing market would collapse, McNamara suggested.

But, uh, the same argument could be easily made against existing libraries. And yet, we treasure them and they’ve done nothing to destroy the book market (and much to help it!). The lawyer for the publishers also trotted out this debunked nonsense:

“Free is an insurmountable competitor,” the publishers’ complaint said.

I mean, we’ve been hearing that stupid line for ages, and it’s never been true. As I noted nearly two decades ago, saying you can’t compete with free, is actually an admission that you can’t compete at all. As noted above, there is a qualitative difference between scanned ebooks and licensed ones, but the publishers don’t even seem to recognize this, which is incredible.

There’s also this nonsense from former Copyright Office boss, now publisher top lobbyist, Maria Pallante (who Ars bizarrely describes as “a chief executive” rather than the chief executive):

A chief executive of the Association of American Publishers, Maria Pallante, told The Wall Street Journal that if IA’s conduct “is normalized, there would be no point to the Copyright Act.”

That’s utter nonsense. Again, apply that same reasoning to libraries. What the Internet Archive is doing here is not only blessed by the Copyright Act, it’s no different than what libraries already do.

Either way, now we wait. Whatever outcome in this case, it will surely be appealed, and that’s where the real battle will happen. Hopefully Judge Koeltl starts things off on the right foot.

Filed Under: controlled digital lending, copyright, ebooks, fair use, first sale doctrine, lending, libraries, licenses
Companies: association of american publishers, internet archive

Amazon's Refusal To Let Libraries Lend Ebooks Shows Why Controlled Digital Lending Is So Important

from the libraries-need-books dept

The Washington Post tech columnist Geoffrey Fowler recently had a very interesting article about how Amazon won’t allow the ebooks it publishes to be lent out from libraries. As someone who regularly borrows ebooks from my local libraries, I find this disappointing — especially since, as Fowler notes, Amazon really is the company that made ebooks popular. But, when it comes to libraries, Amazon won’t let libraries lend those ebooks out:

When authors sign up with a publisher, it decides how to distribute their work. With other big publishers, selling e-books and audiobooks to libraries is part of the mix ? that?s why you?re able to digitally check out bestsellers like Barack Obama?s ?A Promised Land.? Amazon is the only big publisher that flat-out blocks library digital collections. Search your local library?s website, and you won?t find recent e-books by Amazon authors Kaling, Dean Koontz or Dr. Ruth Westheimer. Nor will you find downloadable audiobooks for Trevor Noah?s ?Born a Crime,? Andy Weir?s ?The Martian? and Michael Pollan?s ?Caffeine.?

I’ve seen a lot of people responding to this article with anger towards Amazon, which is understandable. I do hope Amazon changes this policy. But there’s a much bigger culprit here: our broken copyright laws. In the physical world, this kind of thing isn’t a problem. If a library wants to lend out a book, it doesn’t need the publisher’s permission. It can just buy a copy and start lending it out. Fowler’s correct that a publisher does get to decide how it wants to distribute a work, but with physical books, there’s the important first sale doctrine, which lets anyone who buys a book go on and resell it. And that meant that in the past, libraries have never needed “permission” to lend out a book. They just needed to buy it.

Unfortunately, courts seem to take a dim view of the first sale doctrine when it comes to digital goods.

However, a few years back, some very smart librarians and copyright professors and experts got together and created a system called Controlled Digital Lending (CDL), which aimed to (1) rectify this massive gap in public access to knowledge while (2) remaining on the correct side of copyright law. In its most basic form, CDL, involves libraries buying physical copies of books (as they did in the past), scanning those books (which has already been ruled to be fair use for libraries) and then lending out that digital copy only if they had the matching physical copy on the shelf. As the libraries and copyright experts correctly note, it’s difficult to argue that this is any different than lending out the copy of the book that they bought.

But, of course, publishers have always hated libraries’ ability to lend out books in the first place — and have been itching to use the power of copyright to block that. Already, they charge libraries insanely high prices for ebooks to lend, and put ridiculous limits on how those books can be lent.

So, no surprise, last year, in the middle of a once-in-a-century pandemic, the publishers sued the Internet Archive, arguing that its Open Library project, which runs based on the CDL principles, violated copyright law. And, incredibly, a ton of people have cheered on this nonsense lawsuit — even those who hate Amazon.

Yet, if you really want to stop Amazon from being able to block libraries from lending out ebooks, there’s a simple answer: fix copyright law. Make it clear that Controlled Digital Lending is legal. Or, go even further and say that the First Sale Doctrine also applies to digital goods, as it absolutely should.

Filed Under: controlled digital lending, copyright, digital first sale, ebooks, first sale, knowledge, libraries
Companies: amazon, internet archive

Internet Archive Responds To Publishers Lawsuit: Libraries Lend Books, That's What We Do

from the we're-a-freakin'-library dept

Last month, we wrote about the big publishers suing the Internet Archive over its Controlled Digital Lending (CDL) program, as well as its National Emergency Library (NEL). As we’ve explained over and over again, the Internet Archive is doing exactly what libraries have always done: lending books. The CDL program was structured to mimic exactly how a traditional library works, with a 1-to-1 relationship between physical books owned by the library and digital copies that can be lent out.

While some struggled with the concept of the NEL since it was basically just the CDL, but without the 1-to-1 relationship (and thus, without wait lists), it seemed reasonably defensible: nearly all public libraries at the time had shut down entirely due to the COVID-19 pandemic, and the NEL was helping people who otherwise would never have had access to the books that were sitting inside libraries, collecting dust on the inaccessible shelves. Indeed, plenty of teachers and schools thanked the Internet Archive for making it possible for students to still read books that were stuck inside locked up classrooms. But, again, this lawsuit wasn’t just about the NEL at all, but about the whole CDL program. The publishers have been whining about the CDL for a while, but hadn’t sued until now.

Of course, the reality is that the big publishers see digital ebooks as an opportunity to craft a new business model. With traditional books, libraries buy the books, just like anyone else, and then lend them out. But thanks to a strained interpretation of copyright law, when it came to ebooks, the publishers jacked up the price for libraries to insane levels and kept putting more and more conditions on them. For example, Macmillan, for a while, was charging $60 per book — with a limit of 52 lends or two years of lending, whichever came first. And then you’d have to renew.

Basically, publishers were abusing copyright law to try to jam down an awful and awfully expensive model on libraries — exposing how much publishers really hate libraries, while pretending otherwise.

Anyway, the Internet Archive has filed its response to the lawsuit, which does the typical thing of effectively denying all of the claims in the lawsuit (though I will admit that I chuckled to see them even “deny” the claim that the Archive’s headquarters are in an “exclusive” part of San Francisco (FWIW, I’d probably describe the area more as “not easily accessible by public transit,” but that doesn’t quite make it exclusive — or at least not any more exclusive than most of the rest of SF)).

The Internet Archive admits that its headquarters are located in San Francisco, but denies that the corner of Funston and Clement Streets is an ?exclusive area.?

The key part, of course, will be the defenses, and as expected the Internet Archive throws everything in starting with fair use, failure to state a claim, first sale, DMCA safe harbor, and statute of limitations and laches. The key ones are going to be fair use and the first sale issue. And the response lays out the basics of how this defense is going to be argued:

The Internet Archive does what libraries have always done: buy, collect, preserve, and share our common culture. In furtherance of that mission, the Internet Archive has received grant funding from the National Endowment for the Humanities, the National Science Foundation, and the federal government?s Institute of Museum and Library Services, among many other sources. Many libraries and archives, including the Library of Congress, Boston Public Library, University of Illinois at Urbana-Champaign, and smaller community libraries like the Allen County Public Library trust the Internet Archive to digitize books and other materials in their collections in order to preserve physical texts and to facilitate public access. The Internet Archive is part of a network of libraries around the world?each of which is using digital technologies to meet the many challenges of serving patrons with diverse needs and differing abilities and to ensure that the growing storehouse of human creativity is not lost because no one has the capacity to preserve it.

Like Plaintiffs, the Internet Archive believes that ?[b]ooks are a cornerstone of our culture and system of democratic self-government? and ?play a critical role in education.? Accordingly, democratizing access to information, and facilitating access to books in particular, has been a core part of the Internet Archive?s mission for decades. But, for many people, distance, time, cost, or disability pose daunting and sometimes insurmountable barriers to accessing physical books. Digitizing and offering books online for borrowing unlocks them for communities with limited or no access, creating a lifeline to trusted information. Readers in the Internet age need a comprehensive library that meets them where they are?an online space that welcomes everyone to use its resources, while respecting readers? privacy and dignity.

[….]

The Internet Archive has made careful efforts to ensure its uses are lawful. The Internet Archive?s CDL program is sheltered by the fair use doctrine, buttressed by traditional library protections. Specifically, the project serves the public interest in preservation, access and research?all classic fair use purposes. Every book in the collection has already been published and most are out of print. Patrons can borrow and read entire volumes, to be sure, but that is what it means to check a book out from a library. As for its effect on the market for the works in question, the books have already been bought and paid for by the libraries that own them. The public derives tremendous benefit from the program, and rights holders will gain nothing if the public is deprived of this resource.

During the early days of the COVID-19 crisis, in response to urgent pleas from teachers and librarians whose students and patrons had been ordered to stay at home, the Internet Archive decided to temporarily permit lending that could have exceeded the one-to-one owned-to-loaned ratio. With millions of print books locked away, digital lending was the only practical way to get books to those who needed them. The Internet Archive called this program the ?National Emergency Library? and planned to discontinue it once the need had passed. Twelve weeks later, other options had emerged to fill the gap, and the Internet Archive was able to return to the traditional CDL approach.

Contrary to the publishers? accusations, the Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves. They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world. Copyright law does not stand in the way of libraries? right to lend, and patrons? right to borrow, the books that libraries own.

In a blog post about this, Internet Archive Founder Brewster Kahle notes that beyond trying to kill the CDL, the lawsuit also looks to force the Archive to destroy the digital books it’s scanned for so many libraries, and to preserve that history.

These publishers call for the destruction of the 1.5 million digital books that Internet Archive makes available to our patrons. This form of digital book burning is unprecedented and unfairly disadvantages people with print disabilities. For the blind, ebooks are a lifeline, yet less than one in ten exists in accessible formats. Since 2010, Internet Archive has made our lending library available to the blind and print disabled community, in addition to sighted users. If the publishers are successful with their lawsuit, more than a million of those books would be deleted from the Internet?s digital shelves forever.

I call on the executives at Hachette, HarperCollins, Wiley, and Penguin Random House to come together with us to help solve the pressing challenges to access to knowledge during this pandemic. Please drop this needless lawsuit.

It really is quite incredible that these publishers are looking to effectively do a digital book burning in the midst of a pandemic.

Filed Under: books, controlled digital lending, copyright, fair use, library, national emergency library, publishers
Companies: internet archive

Research Libraries Tell Publishers To Drop Their Awful Lawsuit Against The Internet Archive

from the speak-up dept

I’ve seen a lot of people — including those who are supporting the publishers’ legal attack on the Internet Archive — insist that they “support libraries,” but that the Internet Archive’s Open Library and National Emergency Library are “not libraries.” First off, they’re wrong. But, more importantly, it’s good to see actual librarians now coming out in support of the Internet Archive as well. The Association of Research Libraries has put out a statement asking publishers to drop this counter productive lawsuit, especially since the Internet Archive has shut down the National Emergency Library.

The Association of Research Libraries (ARL) urges an end to the lawsuit against the Internet Archive filed early this month by four major publishers in the United States District Court Southern District of New York, especially now that the National Emergency Library (NEL) has closed two weeks earlier than originally planned.

As the ARL points out, the Internet Archive has been an astounding “force for good” for the dissemination of knowledge and culture — and that includes introducing people to more books.

For nearly 25 years, the Internet Archive (IA) has been a force for good by capturing the world?s knowledge and providing barrier-free access for everyone, contributing services to higher education and the public, including the Wayback Machine that archives the World Wide Web, as well as a host of other services preserving software, audio files, special collections, and more. Over the past four weeks, IA?s Open Library has circulated more than 400,000 digital books without any user cost?including out-of-copyright works, university press titles, and recent works of academic interest?using controlled digital lending (CDL). CDL is a practice whereby libraries lend temporary digital copies of print books they own in a one-to-one ratio of ?loaned to owned,? and where the print copy is removed from circulation while the digital copy is in use. CDL is a practice rooted in the fair use right of the US Copyright Act and recent judicial interpretations of that right. During the COVID-19 pandemic, many academic and research libraries have relied on CDL (including IA?s Open Library) to ensure academic and research continuity at a time when many physical collections have been inaccessible.

As ARL and our partner library associations acknowledge, many publishers (including some involved in the lawsuit) are contributing to academic continuity by opening more content during this crisis. As universities and libraries work to ensure scholars and students have the information they need, ARL looks forward to working with publishers to ensure open and equitable access to information. Continuing the litigation against IA for the purpose of recovering statutory damages and shuttering the Open Library would interfere with this shared mutual objective.

It would be nice if the publishers recognized this, but as we’ve said over and over again, these publishers would sue any library if libraries didn’t already exist. The fact that the Open Library looks just marginally different from a traditional library, means they’re unlikely to let go of this stupid, counterproductive lawsuit.

Filed Under: cdl, controlled digital lending, copyright, fair use, libraries, nel, pandemic
Companies: association of research libraries, internet archive

Internet Archive Closing National Emergency Library Two Weeks Early, Due To Lawsuit, Despite How Useful It's Been

from the how-depressing dept

Last week, the Internet Archive announced that it was going to close the National Emergency Library two weeks earlier than it had originally planned to do so, because of the disappointing lawsuit against the organization by most of the major publishing houses. As we said when that lawsuit was filed, while the publishers may win (and may force the entire Internet Archive to close), it’s still a blatant attack on culture. And, of course, the lawsuit isn’t just over the National Emergency Library, but the entire concept of Controlled Digital Lending, the underpinning of the Internet Archive’s OpenLibrary, which lets you check out scans of books in a one-to-one relationship with physical books the library holds.

If you came down from space without understanding the history of copyright, there is no way this would make sense to you at all. The publishers are suing a library for making information available to people while they’re stuck at home during a pandemic and all the physical books are locked up. Whether or not it meets the technical boundaries of fair use is one question. Whether or not the lawsuit is an abhorrent attack on access to knowledge and culture is another altogether.

Indeed, in a separate blog post, the Archive made it clear just how impactful the NEL has been. It includes a huge list of testimonials.

Margaret D., Nassau, Bahamas, Educator: Margaret is an educator who uses the NEL for reading books in a classroom setting. ?I use the NEL daily for read-alouds and reading recommendations for students during remote learning, in addition to personal reading as well. It is the best thing to happen for my classwork needs and resources. And [I] couldn?t have functioned without it. The NEL is [a] godsend.?

Benjamin S., Camden, New Jersey, Librarian: Benjamin is a librarian who uses the NEL to help his community. ?I was able to find basic life support manuals (BLS Provider Manual) needed by front line medical workers in the academic medical center I work at. The physical collection was closed due to COVID-19 and the NEL allows me to still make necessary health informational materials available to my hospital patrons. It has also provided anatomy materials for the gross anatomy lab in the medical school. Additionally, the NEL has allowed me to augment the resources provided from paid databases to patrons in their transition to online learning.?

Kathleen M., Santa Clara, California, Professor: Kathleen is a Professor with the Department of Art and Art History at Santa Clara University. ?The Internet Archive has been a godsend for my students at Santa Clara University this quarter?especially with all libraries and interlibrary loan services closed. My students wrote sophisticated research papers on a variety of subjects during spring quarter. The Internet Archive was a major factor in their success. They and I are so grateful that you made the decision to make all books available during COVID-19. Thank you so much!?

Katrina R., Detroit, Michigan, Librarian: Katrina is a librarian using the NEL for research. ?I have used the NEL to help students and researchers access materials that they would otherwise be unable to access or request because of the coronavirus pandemic. Without this access, I believe student success will be negatively impacted as they try to complete their coursework. As an academic librarian working in an area of the country with a high rate of the coronavirus, the NEL has allowed me to continue to support the research needs of the University population while also keeping my colleagues and users safe.?

Christopher D., Baltimore, Maryland, Educator: Christopher is an educator who uses the NEL in a classroom setting for teaching, research, and the completion of his dissertation. ?The NEL has been indispensable. With every library closed and many lending systems either unsuited or crashing due to the tidal influx of users, the NEL?s smart, easy interface has assisted and accelerated my research enormously. I also use the NEL in teaching to pull articles from otherwise unavailable or inaccessible texts.?

Kelly P., Detroit, Michigan, Researcher: Kelly uses the NEL for research purposes for her PhD. ?The NEL has provided access to scholarly monographs that are unavailable during the global pandemic due to library closures. It [NEL] has provided tangible resources allowing me to continue my research work while disconnected from physical networks (office space, library access, institutional support spaces). It has shown the need for free digital resources at all times, not just during the shutdowns due to the global pandemic.?

There are a lot more on that page. I don’t know how the court will rule in the case — and, again, courts often interpret anything having to with copyright in a fairly maximalist manner. But the attempt to kill the Internet Archive for helping people access books that are not available through other means is truly disgusting.

Filed Under: books, cdl, controlled digital lending, national emergency library, nel, pandemic
Companies: internet archive