Publishers are suing the Internet Archive over digital book lending



At the start of the pandemic, teachers and librarians pleaded with a prominent nonprofit to make it easier for kids at home to check out books from its digital library.

The organization, called the Internet Archive, agreed. While it traditionally loaned out its more than a million digital books one at a time to the public and through partnerships with libraries, it dropped that limit in what it described as a “National Emergency Library.”

Roughly two months later, major book publishers including HarperCollins sued the Internet Archive for copyright infringement — saying its digital library initiative “grossly exceed” what libraries are allowed to do. A few months later, it reinstated lending limits, court documents show.

The fight, which the publishers and the Internet Archive asked a federal court to end earlier this month, has triggered a larger ideological debate about the application of copyright law when it comes to digital copies of books, pitting publishers and authors against librarians. At stake is the future of how libraries are allowed to buy and lend out digital books to the public, which advocates say is core to a functioning democracy as technology takes over.

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Unlike physical books, which libraries often buy outright and lend to patrons one at a time until they’ve fallen apart, the process for digital books is typically different. Libraries usually rent eBooks from publishers, and can only loan them out a certain number of times — often a couple dozen — until they have to renew the license. Those licenses can cost four to five times as much as buying the book, sometimes straining library budgets.

Meanwhile, the Internet Archive and some others have pursued what’s dubbed controlled digital lending, in which they buy and scan copies of books they own and loan them out virtually to patrons one at a time, similar to physical books.

But publishers argue this breaks copyrights law.

Terry Hart, the general counsel for the Association of American Publishers, said that controlled digital lending is a “made up doctrine,” and that the Internet Archive is using it to be “directly at odds” with copyright law.

“Legitimate libraries don’t engage in this,” he said. “This unlawful copying and distribution of other people’s stuff.”

Librarians and open-internet activists say it’s not, and stopping it is a way for publishers to assert control and fatten their pockets.

“What libraries do is they buy, preserve and lend,” Brewster Kahle, the founder of the Internet Archive, said in an interview. “Publishers are saying that you may not buy, you may not preserve and you may not lend except under exactly the circumstances that I tell you.”

The rise in technology and the pandemic resulted in a surge in demand for eBooks. Libraries have tried to keep up with the changing landscape, and have turned to a number of digital book lending platforms, such as Overdrive and Libby. But this has been costly, and a point of contention for librarians, many of whom believe that digital book lending should work similar to physical books, allowing them to purchase copies outright and loan them out.

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“Libraries regularly pay four to five times what consumers pay for the same eBooks and then are forced to rebuy the same titles every year,” said Ellen Paul, the executive director of Connecticut’s library consortium, in a statement earlier this year responding to a state bill aimed at bolstering state library budgets so they could afford to keep up with the rise in digital books.

“[It’s] costing taxpayers thousands of dollars over the life of a single eBook and making a robust eBook collection out of reach for many libraries,” she said.

The loaning of physical books takes place under the legal principle of first-sale doctrine, which limits the rights of content creators to control how their works are resold, Mehtab Khan, a resident fellow at the Yale Law School’s Information Society Project, says. But that principle does not apply to digital books, mainly because case law has not caught up with how digital books have changed the landscape of libraries and publishing, experts said.

The controlled digital lending legal theory, however, was created by Michelle Wu in the early 2000s. Wu, a librarian at the University of Houston at the time, saw floods destroy much of her library’s collection, and she sought to create a way to digitize and preserve the rest of the books under her purview.

Mary Rasenberger, the chief executive of the Authors Guild, said the Internet Archive’s attempts to scan and upload copies of books for free distribution using this theory is an attack on writers. “If you can just go and make your own copies [of books], you’re taking away income from authors,” she said.

“The libraries that raised me paid for their books,” Sandra Cisneros, the acclaimed author of “The House on Mango Street,” said in a statement in response to the legal case. “They never stole them.”

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But Corynne McSherry, legal director of the Electronic Frontier Foundation, which represents the Internet Archive, said libraries are simply trying to do what they’ve done for “thousands of years,” and are not running afoul of any copyright laws by using controlled digital lending to make books available to the masses. She added that this is simply an attempt by publishers to grow their e-Book market and force libraries to pay costly licensing agreements that help a publisher’s bottom line.

She said she is not surprised by the blowback.

“Publishers have historically always had a little anxiety around libraries and the sort of the sense that somehow libraries are invading [their] markets,” she said. “This is a very natural thing, but in fact, copyright law doesn’t work like that. You actually don’t get the unlimited ability to control just because you have copyright in a work.”

Library budgets are already tight, said Jennie Rose Halperin, the executive director of Library Futures, and this would trigger difficult decisions between spending money on re-licensing popular books or investing money into securing works that aren’t immediately popular, but important to preserve.

Additionally, libraries could become beholden to the whims of third-parties, who might decide not to carry books on queer rights, abortion or other sensitive political issues, if political pressure to ban them becomes hot, she said. It could create a situation where “what the general public reads and has access to will be decided upon by a corporation, not by individual community needs.”

Khan, of Yale Law School, said the fight is crucial. As digital technologies flourish, rules around how work created by authors, signers, and movie makers can be shared widely without running afoul of copyright laws need to become more refined.

She added that is beneficial to the United States to skew that balance in favor of giving people open access to material as much as possible. “It’s a value that we want to protect in a democratic society,” she said.


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