Standard disclaimer: I work for one of the organizations that filed an amici brief on the side of the Internet Archive that I discuss here. The views expressed here, though often informed by that work, are my own and should not be attributed to Library Futures or any of my previous library employers.
During the early months of the pandemic I was almost unable to read. When I started again, all I wanted was to reread the problem novels of my youth—the things that you’d now find in the YA section, but there was no YA section of the library in the 1980s. And by 2020, many of the books I remembered were (with good reason) no longer on library shelves. Instead I borrowed scans of them—PDFs often made from old library books—from the Internet Archive. For years the Archive, in addition to preserving the history of the web, letting you listen to Grateful Dead shows and 78s, and being the repository of old computer games, has also purchased and scanned books, making them available to borrow through something called Controlled Digital Lending (CDL), wherein a library or institution that owns a paper book can make a digital copy and then lend either the physical copy or the paper one. The deal with CDL is that you maintain that own to loan ratio—you lend out only as many digital copies as you have physical copies, and you lend only one or the other.
For a few months during the pandemic, the Internet Archive decided to abscond with the own to loan ratio and to let multiple people borrow a copy of The Pinballs at the same time. I’m a little unclear on how many people really wanted to borrow the problem novels of the 1980s all at the same time, but it was tremendously useful for, say, students who were all supposed to be reading a book for class but all the physical copies of the book their school had purchased were locked up in a school no one could get to and there wasn’t the money or the wherewithal to get everyone a digital copy.
Publishing companies do not like libraries.1 Or rather they like libraries, but only to the extent that libraries advertise their wares. They do not like that libraries can buy one copy of a book and then do whatever they want with it—lend it out a hundred or more times, sell it, give it away, turn it into a craft project, or whatever. Publishing companies—and there are only five big ones—hate that. Ebooks were their golden ticket: because ebooks are digital, they are licensed, not sold.2 That meant the publishers could rent ebooks to libraries under any terms they wanted and they could change them at any time. Have you ever had a bad landlord? Yeah, well. I don’t think I need to explain more.
I bought—or rented—ebooks for libraries for the better part of a decade. During that time, I encountered the following rental agreements:
You have to re-rent that book every 26 checkouts.
You have to re-rent that book every 12 checkouts or one year (or 24 checkouts or 2 years), which ever comes first.
You can have that book forever and transfer it from platform to platform but you have to pay $80/copy. Oh wait, we changed our mind about that. You’re going to have to rent it again.
You can rent one copy of that book for a period of months. Then you can rent more. It doesn’t matter how big or small your library is; you only get that one copy to start.
I’m probably forgetting some. Ebook prices for libraries are also three or four or five times what they cost if you “buy” them them from Amazon or Apple. (You’re not really buying them either. All that fine print none of us read specifies exactly all the ways in which you aren’t buying them. You might remember when 1984 disappeared from everyone’s Kindles. Now the text of Roald Dahl books is changing without your knowledge or consent.)
Most libraries buy (or rather rent) ebooks as part of a consortium. I could belabor how difficult that is, but I’d rather not revisit that particular hell or bore you to tears more than I already have. Just trust me, it’s a SNAFU every which way. A very expensive and very time-consuming SNAFU.
So to get back to our main point: Publishing companies hate libraries. Ebooks were a way to get back at those pesky libraries for their centuries of using the first sale doctrine3 to do things like let people borrow books, to lend books to patrons at other libraries (a thing called interlibrary loan—that thing they always told you to do in college before the day before your paper was due), to catalog books, to read them to children at storytimes—you know, to do regular library stuff. But libraries kept pushing back. They made a fuss about HarperCollins’s 26 checkout limit. They pushed back on Macmillan’s embargo. They raised a ruckus, and people like libraries, so people started paying attention. What was the publishing industry to do?
Then there was a global pandemic and the Internet Archive started letting people borrow PDF page scans of books, and the publishing industry saw its chance to strike. Hachette v. Internet Archive was born.4
There’s a case to be made that the Archive’s lending during the few months of the National Emergency Library was pushing past the bounds of what copyright law allows. Some of us maintain that “[c]opyright does not impose an upper limit on how efficient or innovative libraries can become.”5 I think it’s a jerk move for giant corporations intent on making money via creative work to sue a nonprofit intent on preserving and sharing culture, especially during a global pandemic. Jerk moves aren’t relevant to legal cases, of course—but no matter what you think about the ostensible subject of Hachette v. Internet Archive, its consequences for libraries are grave.
Court cases are only partly about the issue at hand. Whatever decision the court makes will settle the dispute between the publishing industry and the Archive, likely making neither happy. But more importantly, how the decision is made, what rationales are used, what arguments the court accepts and which it rejects—these are the things that will set legal precedent about what libraries can own and what they can only license; what they can lend and what they must restrict.
I believe that information is meant to be shared. The collective content of humanity’s creative output enriches us all. I no longer work in libraries, but I do work for libraries, and my heart and my work will always go toward preserving their right to exist. If you feel that way too, you can follow the oral arguments in Hachette v. Internet Archive tomorrow (Monday, March 20, 2023, for future reference). Neither you nor I can control the court. “We can, however,” as a number of good folks wrote the other day, “stand with Internet Archive as it fights for the right to buy, preserve and lend books, which is what libraries do.” I hope you’ll do the same.
Hey, check out that collection of links I can offer you because of the Internet Archive!
The legal issues surrounding licensing vs. ownership are too complex for me to get into, but here’s a writeup of one of the many bits of litigation about whether or not you can own the stuff you bought.
NOLO has a nice summary of all the ways corporate litigation has worked to narrow the first sale doctrine over the years.
If you are deeply curious, you can read all the things about the case on Court Listener (Which, incidentally, exists because we haven’t totally shut down free access to information. Yet.)
Amici Curiae Brief of Library Futures Institute, EveryLibrary Institute, and Readers First in Hachette v. Internet Archive.