Last week in New York, federal judge John G. Koeltl ruled in favor of the publishers in their long-running suit against the Internet Archive. The plaintiff publishers are claiming that the Internet Archive is stealing sales from them by lending in-copyright books to its library patrons; Judge Koeltl weirdly claimed that the Internet Archive, which charges its patrons zero dollars to borrow books, “profits from exploiting the copyrighted material without paying the customary price.”
Questions of “profit” in the opinion occlude the real question, which is: Are digital books entitled to the same legal protections as print ones? Specifically, is there a way to preserve for ebooks the right of first sale that applies to print books—the provision that makes it legal for you to sell your used books at a garage sale, and also for libraries to buy, own, preserve and lend books, all without paying royalties or licensing fees?
Or are books going to become a rental-only proposition, like songs at Spotify, software at Microsoft, or movies at Netflix?
The case hinges on the legality of the library practice known as Controlled Digital Lending, whereby libraries scan a lawfully-acquired paper book, which is then stored and kept out of circulation; the digitized copy then serves as a proxy for the physical book, which is loaned to one patron at a time, just like a regular library book. This 12-year-old legal framework was developed by the best law librarians and copyright experts in the U.S., including Kyle K. Courtney of Harvard, David R. Hansen of the Authors Alliance, and legal scholar Michelle M. Wu, specifically to preserve traditional library rights for digital books.
But that cut no ice with Judge Koeltl, who weighed the public benefit conferred by libraries against corporate profits, and decided unequivocally that the law must protect, not the former, but the latter, in an eye-popping passage:
Finally, the Court must consider “the public benefits [IA’s] copying will likely produce.” Andy Warhol Found., 11 F.4th at 50. IA argues that its digital lending makes it easier for patrons who live far from physical libraries to access books and that it supports research, scholarship, and cultural participation by making books widely accessible on the Internet. But these alleged benefits cannot outweigh the market harm to the Publishers.
This is about ten thousand kinds of not okay. (Also, why wouldn’t similar reasoning apply to *all* library lending, including the lending of paper books? Doesn’t any library loan potentially deny publishers a sale?)
Any writer with a shred of regard for cultural posterity should be demanding an absolute acknowledgement, in law, that ebooks are books, and must retain the same statutory protections given to paper books. I’ve got an idea about how to make such a demand effectively, so please read on.
There are a lot of legal scholars out there who absolutely reject the court’s 100% pro-industry position, as we’ll doubtless be seeing in the coming days. Copyright law, after all, is meant to balance the interests of rightsholders with the public good. If all new ebooks are to be published as rental-only database products, there will be significant harm to libraries and to the public.
In response to the ruling, Internet Archive founder Brewster Kahle wrote, “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.”
The connection between protecting democracy and the right of libraries to own, preserve and lend books is a powerful one. At a time when fascists all over the U.S., including Florida governor Ron DeSantis, are literally banning books in schools and public libraries, it is beyond dangerous to give commercial interests the power to shut off a library’s access to any ebook they please.
And there are commercial dangers, in addition to the political dangers inherent in giving corporations total control over what books are and aren’t available in libraries. Ebook price gouging is a crazy problem!!
I’m a writer and I won’t compromise on this: I want libraries to own, not rent, my work.
So here’s my idea: Writers can and should help fight for libraries not only by speaking out, but by refusing to publish books with corporate profiteers. That is, do not sign a contract with publishers unless they guarantee, in writing, to sell permanent ebook copies of your work—not via license, not via “perpetual license,” but absolute, permanently ownable for keeps ebooks, to libraries. If enough authors were to join in this demand, we could help ensure that books don’t go the way of music, software and movies—“content” that can only be rented, and never owned. Imagine the future of a whole culture placed in the hands, not of archivists and educators, but of business.
Publishers have to buy books from writers, but we don’t have to sell to them unless the terms are acceptable. Publishers are not archivists, they’re not librarians, and they shouldn’t be in control of cultural posterity.