Buying a book should be no different from buying an apple. When you buy an apple, the farmer can’t show up in your kitchen later and decide your time is up, and you’ve got to pay for it again. It’s yours forever—to eat, or paint in a still life, or cut up for a kid’s snack. And thanks to the first sale doctrine of copyright law, codified by Congress in 1909, the books on your shelves are yours forever, too, in exactly the same way your apple is; you’re free to read them (or not), loan them to friends, or sell them to a used bookshop, without restriction. Copyright law balances the public good—our collective right to access information—with the rights it grants to authors and inventors.
Publishers can’t demand more money for the paper books you’ve already bought, but the technology for copying and distributing books has evolved a lot since 1909. So four titanic corporate publishers are currently in court, insisting on the effective right to barge in and demand multiple, recurring payments for digital books–like they do for digital movies, music, and software–and they want to exercise that same power over the books in libraries.
This threat to the ownership of books is what makes the ongoing publishers’ lawsuit against the Internet Archive politically dangerous, and in an altogether different way from earlier challenges and amendments to copyright law. At a time of increasing book bannings and attacks on libraries, public schools and universities, it is not safe for democracy, or for our cultural posterity, to leave an “on/off” switch for library books in the hands of corporate publishers.
In March, after nearly three years of litigation, US District Court Judge John G. Koeltl sided with the publishers against the Internet Archive. But there’s a significant catch, as we learned a few days ago when his final order was filed.
As I’ve argued before, the lawsuit hinges on the question of whether ebooks are books, subject to the existing laws governing the sale of books, or whether the publishers can redefine ebooks as temporary, rental-only media–a new class of unownable goods, like streaming-only films from Disney or subscription-only software from Microsoft. But libraries must have the option to buy and own their books–all their books, including ebooks–and own them absolutely, like an apple.
Popular
"swipe left below to view more authors"Swipe →
In the summer of 2020, Hachette, Penguin Random House, HarperCollins, and Wiley accused the Internet Archive of “mass-scale copyright infringement” because of the way the Internet Archive’s Open Library loans its ebooks to patrons. Instead of renting their ebooks from publishers, the Internet Archive scans them from the paper books it owns, stores the paper originals, and loans each scan out to only one patron at a time, a common library practice known as Controlled Digital Lending (CDL). Following the reasoning of expert copyright lawyers and library scholars over the last twelve years, the Internet Archive, along with hundreds of other libraries and archival institutions, maintains that CDL is a fair and logical way to preserve traditional library practices for the digital world.
After the decision in March, the litigants in the Internet Archive suit began preparing for an appeal. But in the final order filed on August 11, Judge Koeltl delivered a shock ruling that fell far short of granting the publishers the remedies they’d originally sought.
The publishers’ objective had been to forbid the Open Library to loan any of their in-copyright books as ebooks. That was the explicit request in the original complaint. But not even this industry-friendly judge was willing to go that far; he sided with the Internet Archive’s interpretation of the decision instead. For now, the Open Library will have to stop loaning only those ebooks for which the publishers are offering their own “competing” ebooks for license. In other words, the order relies solely on the argument that the Open Library is harming the publishers’ revenues from ebooks, a distinction that seems to go to the heart of the dispute.
Judge Koeltl’s March opinion was bewilderingly silent on the question of how his decision might affect the future ability of libraries to serve the public good, in a world that increasingly relies on access to digital media. His final ruling shows that this central question has yet to be considered.
The publishers shouldn’t be able to pick and choose the bits of copyright law they want to abide by; as we’ve noted, copyright law balances the public good with commercial rights. If publishers’ ebook revenues are protected by the extant provisions of copyright law protecting rights holders, then, presumably, readers and libraries should also be protected. The Internet Archive, and all libraries, should have the same protections under the first sale doctrine that have always allowed them to preserve and lend books to readers.
Writers and artists with a sense of the political dimensions of our work have limited options for countering the antidemocratic, anti-library ambitions of corporate publishing—not least because the industry has consolidated so dramatically in recent decades. The Big Five publishers, three of whom are plaintiffs in the Internet Archive suit, constitute an effective oligopoly over US publishing. Because getting a traditional book deal from a big publisher is so rare, and so highly prized, writers feel powerless, like supplicants who have no choice but to accept whatever terms they may be offered. Even the most successful have precariously irreplaceable professional relationships to maintain. And in public, big publishers always and eagerly tout their commitment to authors’ rights; it’s good for the brand.
Despite all this, last September more than a thousand writers, including Neil Gaiman, Naomi Klein, Mike Masnick, Lilly Wachowski, Kim Kelly, Jeff Sharlet, Cory Doctorow, Daniel Ellsberg, Laurie Penny, Eli Valley, and Mattie Lubchansky signed an open letter in support of the Internet Archive and digital ownership rights for libraries. And tellingly, not a single big-name author spoke out in support of the publishers after their March victory; indeed a few who’d earlier backed the publishers, like Chuck Wendig, appeared to recant, and signed the open letter. As the facts of the lawsuit emerge, it seems that interested parties have begun to understand its dangerous implications.
To the publishers’ claim that they’re all about protecting authors’ rights, I can say only that authors could use better champions. Publishers Weekly reported in April on a recent survey showing that self-published independent authors “earn on average more than authors published by traditional houses.” The Authors Guild, a trade group on the side of the publishers in the Internet Archive suit, reported that over the decade between 2008 and 2018, authors’ incomes had dropped 42 percent, to a median of $6,080. Annual compensation for top publishing executives, meanwhile, is routinely reported to be in the seven figures.
Corporate publishing houses are run like businesses, not cultural organizations. In fact, Judge Koeltl’s March opinion underwrites with startling clarity the assumption that they are, and should be, in it for the money. “[Internet Archive] 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,” he wrote. “But these alleged benefits cannot outweigh the market harm to the Publishers.”
The expectation that profit must always take precedence over other goals and values is all around us; it’s also evident in the Hollywood strikes, and in private equity’s continuing depredations against newspapers. In a recent interview in GQ, Succession and Watchmen writer and WGA member Cord Jefferson spoke out against the “perpetual growth mindset” of investors and executives in media:
They expect to make more money every single quarter for the rest of history, or for as long as this entity exists. And they weren’t concerned about quality, they weren’t concerned about their employees, they weren’t concerned about the people who were doing the work for them, it was just purely about growth at all costs… and that’s not how you make news. That’s not how you make art. That’s not how you invest in actual creativity.
Authors seeking to right these wrongs may have some leverage: They might join forces to demand, for example, that book contracts include the provision that our ebooks must be offered to libraries on the same terms as paper books, so that all books continue to enjoy the protections of the first sale doctrine. This would help keep libraries safe from political attacks, and protect the fundamental work of generating and preserving culture.
I spoke about the idea with copyright lawyer and librarian Dave Hansen, Executive Director of the Authors Alliance, a nonprofit representing authors who support libraries and care about the public benefit. “Authors may have more negotiating power than they imagine,” he said. “Even when it may be hard to get a publisher to give up control over ebook licensing, it’s a reasonable ask for publishers to promise they won’t haul off and sue libraries like the Internet Archive for lending your books online.”
Free societies thrive in a global culture preserved over centuries, a megaculture that today spans a deeply interconnected world by means of the Internet. It’s a worldwide palimpsest of all we can read, hear, see, learn, and experience together, every day. The biggest benefactors and guardians of this megaculture are nonprofit libraries, repositories and archives like Wikipedia and the Internet Archive.
But a culture this spectacularly vivid and rich can flourish only in conditions of collaborative freedom, sharing and openness; and that means expanding, not diminishing, access to digital libraries and archives. Boston University School of Law professor and author Jessica Silbey told me recently, the 20th century “viewed copyright law as incentivizing the production of more copyrighted goods and trademarks; as a carrot, not a stick.” Her book Against Progress describes an evolved vision for intellectual property, “new forms of Digital Age alliances that can resist the power of supercapitalized platforms” with “moral narratives of collaboration, accountability, and quality standards.”
For all who want to help create a better model of intellectual property for the digital era, it’s time to fight the corporate approach to copyright that has increasingly come at the expense of equality, distributive justice, inclusivity, privacy, and self-determination–the urgent societal goals and values that drive many to become artists and writers in the first place. Securing the ownership of digital books for libraries is a good place to start.
Note: The Kahle-Austin Foundation, which is funded by Internet Archive founder Brewster Kahle, awarded a grant to a cooperative, Brick House, which I help lead.
