On Friday, March 24, Judge John G. Koetl of the Southern District of New York issued a summary judgment in favor of the publishers in Hachette v Internet Archive, in which four major book publishers sued the Internet Archive over their use of Controlled Digital Lending. Library Futures filed an amicus brief in the case.
The case revolved around 127 books that were part of 2020’s “National Emergency Library,” which sought to provide crucial access to information at the height of the COVID-19 lockdowns. The ruling evaluated the Internet Archive’s Fair Use argument, finding in favor of the publishers in each factor. While this ruling is disappointing and will be appealed, it does not shut the door on Controlled Digital Lending (CDL) and equitable library ownership of collections more generally.
The last three years have seen a flurry of activity around CDL: the well-attended “CDL Implementers” group, the National Information Standards Organization’s Controlled Digital Lending standards group, development work on Project Re:Share, the international digital lending advocacy of Knowledge Rights 21. These groups, which were not parties to the suit, are led by librarians, lawyers and advocates. They continue to do excellent work, bringing a community together to create solutions for library users around the world.
The ruling does not mean the end of the Archive’s Open Library lending program, which lends 70,000 books every day in limited quantity and duration from a collection of 1.3 million to over 6 million users, providing a lifeline to many who need access to knowledge, particularly rare and out of print materials.
In his analysis, Judge Koeltl failed to recognize that copyright does not exist to protect an author or publisher’s right to profit. As CDL expert Michelle Wu pointed out in our liveblog of the case, “Copyright is supposed to be a balance, with the author’s interest in controlling their work and making money from it on one side, and the public’s interest in consuming and using that work on the other. Copyright would not exist but for the presumption that it would encourage greater production and distribution of works to the public.” However, Judge Koeltl rejected that traditional view of copyright and instead stated that the non-profit Archive’s use “risks eviscerating the rights of authors and publishers to profit from the creation and dissemination of derivatives of their protected works.” But this reading of copyright risks abandoning the public in service of corporate profits. As Wu writes, “Fair return does not equal a right to maximize profit.”
It is simply wrong for the decision to privilege corporate profits over public uses. The Internet Archive is a library, and an institution that serves the public. In her paper, “A Public Service Role For Digital Libraries: The Unequal Battle Against (Online) Misinformation Through Copyright Law Reform And The Emergency Electronic Access To Library Material,” Argyri Panezi writes, “Copyright should provide better support to digital libraries (broadly defined) as the institutional safeguards of our literary treasures. Libraries have a public service mandate to preserve, curate, and provide access to a plurality of original and authoritative sources, and thus ultimately are trusted hubs that equalize access to knowledge.” Unfortunately, this decision undermines this mandate and protects only a market that, in the words of Kyle K. Courtney, is an “expensive, limited, non-negotiated, and highly profitable licensed access market for ebooks.” Further, pointing to a series of commercial precedents like Redigi or TVEyes and claiming that the Archive (a nonprofit library) is a for-profit venture because it accepts donations is a disingenuous reading and one that devalues the work of librarians – particularly those of us working to hold library vendors to account for the surveillance, restrictions on content, and price gouging endemic to the digital market.
Judge Koeltl claims there is a “thriving ebook licensing market for libraries” in the opinion, but most libraries still struggle to afford or access even the most basic resources. In 2019, Reader’s First led the Macmillan Boycott to protest Macmillan’s prohibitory licensing deals. As early as January 2020, states filed bills to regulate the ebook market.There are currently bills in four states (and counting) to regulate the out of control licensing deals that publishers force on libraries to continue to exploit their data, their collections, and their patrons. Ellen Paul, the Executive Director of the Connecticut State Library Consortium says that current ebook contracts are like “the Connecticut [Department of Transportation] paying six times more for asphalt than a general contractor and every two years seeing the road disappear."
It is further important to note that copyright protects a work, not a format. As we wrote in our amicus brief, “To be clear: CDL does not replace licensed eBook lending.” There are many reasons why a library might digitize a book for CDL rather than purchase a licensed ebook: the ebook is not available, they wish to facilitate research or reference purposes for an out of print edition or particular individual’s copy, access for the print disabled, or they face a lack of availability from publishers. As Wu said on our liveblog, “In CDL, the library paid for the copy that it’s using. It’s just changed the format and honors an own to loan ratio.” Because the materials are sequestered in a traditional CDL system and the content is not changed or duplicated, the digitization is simply a shift in format, which is crucial to preservation and the functioning of digitallibraries.
The Internet Archive took a risk that could ultimately set a precedent to benefit librarianship as a whole, but this ruling does not mean that libraries or librarians should overestimate risk when considering their own CDL systems. This ruling does not strike down CDL, which is a long-standing and legally sound practice used by libraries to provide materials to their patrons, supported by a community of librarians who seek to create a better lending environment. As we move forward and regroup, we hope to continue to bring together stakeholders to build the systems and structures that will support a more equitable future. Library Futures intends to continue to work together to move our profession away from vendor-mediated, profit-maximizing, surveilled digital technologies and toward a cooperative vision of abundance and sharing of materials, of knowledge, and of our shared digital future.