Late last month a federal court ruled against the Internet Archive (IA) and its controlled digital lending (CDL) program. IA has 30 days from the district court’s judgment to file notice of appeal, and it has stated its intent to do so. At issue was whether a library could legally digitize the books it already owned and lend the digital copies in place of the print. The IA maintained that it could, as long as it lent only the same number of copies it owned and locked down the digital copies so that a borrower could not copy or redistribute them. It would be doing what libraries had always done, lend books—just in a different format. The publishers, on the other hand, asserted that CDL infringed on authors’ copyrights, making unauthorized copies and sharing these with libraries and borrowers, thereby depriving the authors and publishers of rightful e-book sales. They viewed CDL as piracy.
While Judge John G. Koeltl’s opinion addressed many issues, all his reasoning was based on one assumption: that copyright primarily is about authors’ and publishers’ right to profit. Despite the pervasiveness of this belief, the history of copyright tells us something different.
What persuaded early state and federal government actors to establish copyright was authors’ reluctance to release their books publicly without the ability to stop the then-rampant piracy by publishers. The lack of copyright, then, was seen as a barrier to information reaching the public, and lawmakers enacted copyright to remove that barrier. This societal purpose is reflected in the wording of the Copyright Clause of the Constitution, which makes the spread of knowledge its goal, with copyright merely being a means to achieve that end.
The practice of copyright aligned with its public purpose for the better part of two centuries:
- An author would create a work, a publisher would send it to stores, and a user would buy a copy and be free to use it.
- Copyright owners did not interfere with the end user. This was the case despite many user activities—such as making mix tapes, converting LPs to MP3s, writing fan fiction, and playing pop music at a piano recital—all technically potential infringements of copyright. Making a mix tape violates the reproduction right (also the distribution right if the tape is given to another person), converting an LP to an MP3 violates the right to make derivative works, and the playing of music at a recital violates the public performance right. The public, Congress, and the courts all ignored these behaviors as normal incidental uses or as instances of “fair use”—the allowance for which was not inconsistent with an author’s rights.
- The market controlled the price; once publishers distributed materials to stores, sellers and resellers (e.g., used bookstores) set their own prices, fostering competition and keeping prices reasonable.
Each change in technology—from piano rolls to film to DVDs—created new challenges for copyright, but the end user remained unaffected. Enforcement was aimed only at unauthorized uses of copyrighted works for profit. But starting in the 1970s, the nature of copyright enforcement changed, with plaintiffs seeking to constrain end uses and copyright owners engaging in end runs around fair uses.
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Two types of technology prompted this shift: The first provided tools that automated duplication, distribution, and the creation of derivative works—each making it easier to engage in the very activities protected by copyright. Out of fear that some uses of these tools might harm current or future sales, some content owners tried to prevent all uses by depriving everyone of access to specific technologies. These attacks, while indirect, were aimed at the end user, with the prime example being the suit brought by Hollywood studios against Sony for manufacturing and selling the Betamax home video system in the 1980s, in which the studios claimed that home recording devices infringed on their copyrights. Though the technology was commercial, it was used by individuals who had legitimate access to the content they were taping. Other technologies challenged included Google’s display of images in search results, Amazon’s automated speech-to-text and text-to-speech features, and Google’s caching of web data. The current suit against the Internet Archive for its CDL operation is a more direct attack, claiming the right to dictate how a library lends materials it has purchased. Each of the tools mentioned above allows the buyer/user to more effectively use information that they have bought or otherwise have legitimate access to.
The second technological key to copyright’s shifting focus involved the development of tools that allowed publishers to unilaterally enforce their for-profit theory of copyright without legal review. New functionality included automated takedowns of posts that contain copyrighted music or video; the ability to monitor user activity (e.g., what and how you read) and to monetize it; and technological (as well as license) controls to prevent lending, donating, reselling, or willing e-content (e.g., an e-book) to anyone else. Each of these tools can preemptively halt use—even fair uses. The end user who was once free from publisher control is no longer so.
Increasing the impact on the end user, publishers—not booksellers or authors—now control prices and access. They can charge libraries multiple times what they charge an individual and bill them repeatedly for the same content. They can limit the number of copies a library buys, or even refuse to sell e-books to libraries at all. Such actions ultimately reduce the amount of content that libraries can provide to their readers.
In the Hachette case, a library that has purchased a copy of a print book digitizes it and lends the e-copy (that’s what CDL means) in place of the paper-and-ink original. The only thing that has changed is the book’s format. The change in format allows the buyer (library) to more effectively use the content it has purchased. Copyright protects a work—not a format—yet the justification used to stop CDL appears to be that the copyright owner has the right to profit repeatedly from the sale of the same content in a specific format to the same buyer, even if the buyer only ever needs one copy and already owns one copy.
Historically, copyright was intended to facilitate the efficient consumption and use of information, not to stand in its way. Libraries remain a critical part of the intended ecosystem, both by paying authors for the number of copies they use and by providing access to borrowers who cannot afford to purchase a book themselves. The weaponization of copyright to artificially limit technology’s reach where it would otherwise enable the buyer to use the work as intended when they bought it hurts all of us—and undermines the very purpose of copyright.
