Maria Bustillos on the Lawsuit Against the Internet Archive

Maria Bustillos, writer and a founding editor of The Brick House, has published an op-ed in The Nation discussing the lawsuit by four of The Big Five publishers against The Internet Archive (IA). As noted previously by RF, the suit began against the IA’s National Emergency Library, which brought near unlimited access to works (mostly out-of-print and not in license) to educators, students, and the public during the COVID pandemic. Even after the IA shuttered the Emergency Library, however, the suit continues as appears aimed at the IA’s Open Library, which provides two-week one-person-at-a-time access to digitized books (again, the vast majority of which are in ”orphaned” copyright status or not in-print or licensed). The ultimate target appears to be Controlled Digital Lending (CDL) digitizing titles that a library owns and stores so that they cannot be physically checked out. In essence, the digital copy circulates in place of the print copy, allowing great access and chance of preservation.

Though RF has often voice its support of CDL and written about this lawsuit before, we invite librarians to read Ms. Bustillos’s piece. It is a clear and well-written account of the importance of CDL and the wrong-headedness of the lawsuit.

A few highlights:

But what’s really at stake in this lawsuit is the idea of ownership itself—what it means not only for a library but for anyone to own a book.

For-profit publishers like HarperCollins or Hachette don’t perform the kind of work required to preserve a cultural posterity. Publishers are not archivists. They obey the dictates of the market. They keep books in print based on market considerations, not cultural ones. Archiving is not in the purview or even the interests of big publishers, who indeed have an incentive to encourage the continuing need to buy.

But in a healthy society, the need for authors and artists to be compensated fairly is balanced against the need to preserve a rich and robust public commons for the benefit of the culture as a whole. Publishers are stewards of the right of authors to make a fair living; librarians are stewards of cultural posterity. Brewster Kahle, and the Internet Archive, are librarians, and the Internet Archive is a new kind of library.

The for-profit publishers in the lawsuit, however, do not care for this idea. What they allege in the complaint is this: “Without any license or any payment to authors or publishers, IA [the Internet Archive] scans print books, uploads these illegally scanned books to its servers, and distributes verbatim digital copies of the books in whole via public-facing websites.”

What this ominous description fails to acknowledge is that all libraries that lend e-books “distribute verbatim digital copies of the books in whole via public-facing websites.” Yet the publishers claim later in the same document that they have no beef with regular libraries. They love libraries, they say (“Publishers have long supported public libraries, recognizing the significant benefits to the public of ready access to books and other publications”), and are “in partnership” with them: “This partnership turns upon a well-developed and longstanding library market, through which public libraries buy print books and license ebooks (or agree to terms of sale for ebooks) from publishers.”

The real issue emerges here: The words “license ebooks” are the most important ones in the whole lawsuit.

Publishers approve of libraries paying for e-book licenses because they’re temporary, just like your right to watch a movie on Netflix is temporary and can evaporate at any moment. In the same way, publishers would like to see libraries obliged to license, not to own, books—that is, continue to pay for the same book again and again. That’s what this lawsuit is really about. It’s impossible to avoid the conclusion that publishers took advantage of the pandemic to achieve what they had not been able to achieve previously: to turn the library system into a “reading as a service” operation from which they can squeeze profits forever.

Libraries have operated on those principles for thousands of years, collecting, preserving, and sharing knowledge not for profit but as a public good—requiring nothing. For many centuries, young people of limited means have been the explicitly intended beneficiaries and users of libraries. Some of those young people grew up to write books themselves. It would be a tragedy if the profit motive were to succeed at last in putting an end to that.

Exactly! The lack of a perpetual license option from The Big 5, the need to constantly relicense, the absence of licenses on many culturally significant works, the possible disappearance of licenses on books as they age, and the Big 5’s treatment of literature as a commodity create an intolerable burden on libraries. We seemed doomed to a carousel of only what the Big 5publishers think is commercially viable now. We again call upon The Big 5 to come to the table to negotiate better license terms, encourage libraries to explore mid- and smaller publishers offerings that have better terms and prices—let’s MAKE a market rather than relying on the big publishers alone—and reiterate our support for CDL. Publishers, drop this suit! Is a library boycott of the publishers pursuing it, in support of CDL, out of the question? Nobody is talking about one . . . yet.