The Internet Archive Suit Enters Summary Judgement Phase
/The lawsuit by the Association of American Publishers (AAP) and four large publishers against the Internet Archive’s (IA) Open Library is entering summary judgement phase, in which both sides present their best arguments and judge determines if one sides should prevail without going to trial. The suit, of course, has major implications for library practice.
Publishers Weekly’s Andrew Albanese has explained the contending points. His article is well-worth a must- read for any seeking a more detailed look at the case. We shall bullet point here before offering a quick summary that, as will surprise nobody, argues for the IA position.
Attorneys for the AAP/Publishers argue as follows:
That the IA is not a library but only “Masquerading as a not-for-profit library.”
The IA shares fulltext books illegally, including 33,000 available by license from the publishers by license, without compensating the authors and publishers, with no legal precedent for saying this is fair use.
Controlled Digital Lending (CDL)—digitizing a print work and sharing the digital copy as if it were print while withholding the print to keep a one-one “owned to loaned” ratio—was invented to justify the practice and is not legal because it undermines copyright and inhibits the creation of new works, even if the IA were following it, which the IA is not doing.
The commercial ebook market is healthy and growing but threatened by the IA, which is stealing from authors and publishers, creating market harm.
Attorneys for the IA argue the converse:
Authors and publishers are in fact compensated—the print works are legitimately procured by purchase or gift (thus purchased at some point).
CDL replicates libraries’ analog work in the digital realm, and this work is threatened by the publishers’ digital practices. The publishers will not sell ebooks, though they have been asked, but insist on licensing.
It is the publishers in fact using digital in fact to subvert the aim of copyright, preventing libraries from owning content and requiring licensing over and over, preventing preservation and inhibiting copyright’s avowed purpose of promoting public knowledge and good.
I’m a librarian and admittedly biased. This suit is litigating something that libraries have struggled against for years now: the publishers’ insistence that what they and authors make in print sales is somehow an invalid amount in digital, and that digital costs should be higher—even usuriously so in the case of many large publishers, at many times the price of print. Their stand seems based on two points: that ebooks never wear out and that they are too easy to get—there is no lending “friction.” Both points are invalid. Libraries have offered to pay more for perpetual access, but that option is not available for any ebooks from the Big 5. We are instead forced to license as much higher costs. Why? As for friction, what a farce. The publishers create plenty of friction, with high demand titles often having a huge waiting list because libraries cannot afford to meet demand. Obviously, the hope is using libraries to jack up sales. In any case, this argument ignores library patron behavior. Nearly all our users, even as the pandemic continues and becomes endemic, have no problem going to libraries and checking out dozens of print books at once. Going to a library isn’t “friction” for our readers. It’s joy.
What is clear is that publishers are exploiting DMCA with a false dichotomy between print and digital to take libraries and our readers for a ride. It is hard not to agree with the IA’s attorneys: "What the publishers who have coordinated to bring this lawsuit hope to obtain from this Court is not protection from harm to their existing rights. Instead, they seek a new right foreign to American copyright law: the right to control how libraries lend books. Such an outcome would disrupt libraries’ longstanding right to lend the books they own and their ability to preserve and share much of our cultural heritage in digital form." It is hard not to doubt that these same publishers, motivated by profit, would somehow charge per read and restrict print lending, if only copyright didn’t prevent them? We can only hope that the judge in this case will strike a blow for library readers and say that the generally poor quality scans of titles in the IA are no competition for the publishers’ (generally) high quality digital products, are legitimate, are paid for in their print form, and should be allowed to be used for the sake of reading and preservation. Any other outcome is to contribute to a future in which libraries and readers own nothing, the market is controlled to the detriment of those without ample means, and every read costs a fee. The balance that copyright is supposed to provide is now tilted too far away from the public good. The system is out of whack. Rulings—and yes, laws—are needed to restore a fair balance. Publishers and authors have survived for centuries under fair print pricing. Digital shouldn’t change that. Books are still books.