In their attack on libraries, megapublishers roll a Trojan horse into the courts.
In a remarkable brief filed on July 7 in an ongoing lawsuit, four corporate publishing titans (Hachette, Penguin Random House, HarperCollins, and Wiley) accused the Internet Archives of theft, “mass scale copyright infringement,” and “[ distribute] free full-text digital bootlegs.These are wild allegations — especially considering that the Internet Archive Open Library operates in the traditional terms followed by libraries in this country for centuries.The Open Library lends books, which they own, to a patron at one time, for a fixed time — such as other libraries. To see also : High Tech on the Low Episode # 58: AI Art and NFT.Such public libraries, Open Library does not charge money for these services.The main difference is that Open Library lends e-books online.Each e-book is scanned from paper copies, and paper copies stored away and not circulated; this practice is called Controlled Digital Lending, or CDL.
One book, legally purchased or acquired, one scan, one patron at a time — no money changing hands. But briefly publishers do their best to cast librarians from the Internet Archive as a gang of thieves and pirates.
In fact, publishers ’attacks on the Internet Archive are a Trojan horse for a very different, and radical, idea: that e-books are essentially — legally — different from paper books. If accepted, their argument would remove e-books from many statutory protections upon which library rights positively depend. The result will leave libraries vulnerable to a draconian licensing deal where more e-books are offered. And libraries have to pay and pay, in the absence of digital books that can be purchased permanently and owned directly.
The actual purpose of the publisher appears right on page 6:
Controlled digital lending, as practiced by the Internet Archive, destroys the boundary between physical books and ebooks. The basic principle of CDL is that nonprofits that have a physical book can scan the book and distribute the resulting ebook as a proxy for the physical copy. But this does not ignore that an ebook is a different product from a physical book.
They may be different products, but e-books are still books.
The real stake in this lawsuit is not digital piracy but the preservation of library rights; The real renegades here are not librarians of the Internet Archive but publishers, who are looking to take the machete to the Copyright Act in order to make their e-book products rental-only, so libraries — along with you and me and everyone else — must keep paying them forever. The library will no longer be an independent entity, free to make its own decisions about what to lend; they will be up to any publisher who is going to offer — or not offer.
“We need a strong and independent publisher,” said Internet Archive founder Brewster Kahle, “and we need a strong and independent library.”
Since 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 cases will always be reviewed again in court, one way or another. In fact, in 2011, in her seminal paper on the legal framework known as CDL, law scholar Michelle Wu predicted this lawsuit:
[P] publishers have been using new technologies to exert control over work beyond their control over the printed work. They replace ownership with licenses, where they can manage not only the number of users but also the number of uses.… Given this trend toward greater control over materials by publishers, it would be remarkable if the industry did not oppose library digitization. printed material.
Having anticipated legal pushback from publishers, Wu observed that the spirit of the law was on the library side: The Copyright Clause was adopted not only to protect authors but to promote the advancement of learning and general knowledge. “At the heart of copyright,” he writes, “is public good.”
In the years after the publication of Wu’s paper, scores of leading experts on copyright and libraries joined forces to create the CDL, an all legal toolkit for traditional e-book library lending that was developed with these legal challenges in mind. Internet Archive digital loans rely on CDL, and the reason is that it is thoroughly tested in the lawsuit.
Disingenuously, the publishers’ brief flatly misinterprets the long history and development of the CDL: “The Internet Archive … has searched for years to find legal reasons for its radical infringements. Around 2018, it helped make and market a theory called ‘digital lending’ controlled ‘or’ CDL. ‘”
“Publishers spend millions of dollars to provide books to the public,” according to the summary, and that’s true. Publishers shepherd books to the world, providing vitally important services to all. They have the right to a fair benefit from their employment. But they do not have the right to change the laws that protect libraries.
By the way, community spirit is a quality that is missing from this document. Thought realizing that they are better off presenting statements of support for libraries in general, they can manage this: “Publishers highly respect libraries, recognize that they foster public literacy, serve local communities, and increase author visibility through book clubs, author talks, and creative means other reading involvement.Libraries support authors by paying for printed books and ebooks.
They definitely do! Libraries have become a huge cash cow for publishers, especially during pandemics, when no one can visit the physical library. They claim themselves, in this summary: “Publishers’ annual revenue from the library ebook market, which is shared with authors, has risen to hundreds of millions of dollars, while establishing an important market channel for many titles and serving more digital public.”
I’m a writer, obviously, and I find it totally surprising that these powerful publishers have no discernible sense of responsibility to the public commons, or of the symbiotic relationship that the principle of publishers in a free society should have with libraries. They are supposed to be on the same side: the side of society that is educated, healthy and knowledgeable. Publishers should be library champions, not enemies.
“The right to exclude others,” according to law scholars, is a key characteristic of private property. Or, to put it in lay terms, the right to keep someone’s mitts out of something that makes it your thing. But the idea of private ownership has faded in the Internet age. We have all seen how the complexity of licensing has replaced sales, especially in the case of digital media such as film and music.
But there are deeper aspects of this question that should be considered by anyone who is wasting time and money in the digital world. Our rights to the digital property that we own have become more difficult to define and protect, as digital property becomes more intangible. Collection of images, documents, and music; details of your whereabouts, your tastes and habits; Your transaction records with government and businesses — all of these are also valuable personal property. But instead of being stored in an ancient bookcase or file cabinet, it’s not visible now, stored on your phone or laptop, and often outside of any kind of meaningful personal control.
When any type of unknown and unknown digital intruder can infiltrate your device without your knowledge – let alone permission – and assist themselves with your transactions and location history, follow you on the Internet, modify your software, or withdraw your access to digital books and The song (all based on the requirements of the several zillion-page End-User Agreement written explicitly so that no one in my right mind would even try to read it), does not mean “the right to exclude others”. We’re made to forget what it means to be in personal control of the things that belong to us.
Amnesia about these individual rights and freedoms, paradoxically, is part of what allows corporations to continue to seize greater power. They do not experience amnesia themselves: They seek to improve and strengthen their personal control over the things they have.
It is difficult to maintain what we cannot clearly see or know. But there are several reasons to ensure that digital property can continue to be owned directly, in the traditional way — by individuals, and by libraries in particular.
At a time when right-wing militants are banning and censoring books, even forcing the closure of public libraries, these lawsuits represent a direct and serious threat to freedom of information and expression. You thought 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. It becomes very important 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 forced to recognize the legitimacy of Digital Controlled Lending, and the legal equality between digital books and paper. Thought then they can wake up and realize that they don’t really want to live in the country that they are trying.
Note: From time to time, Maria Bustillos has acted as an informal and unpaid advisor for the Internet Archive.
