Some clarifications on the Publishers v. IA case

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Chris Freeland from the Internet Archive (IA) has blogged on “What the Hachette v. Internet Archive Decision Means for Our Library.” The post is worth a read, but here’s a short summary with a few comments. Its tone is measured, distinguishing it from the crowing that as usual characterizes comments from the AAP, where ne’er a chance to bloviate is ever missed. Those people really should learn about Magnanimity in Victory. In any case, as we shall see, the judgment undercuts their cackling and chortling considerably. Perhaps they won’t be so jubilant when the appeal moves beyond the district court level.

So, what does the judgement mean:

  • It only concerns lending of digitized books via Open Library. So many IA services remain: Interlibrary Loan, creating accessible formats for the print challenged, quoting short passages, digitizing books for preservation (which copyright allows), and government document sharing

  • Out-of-copyright/public domain works are excluded and can be shared..

  • Perhaps most importantly, books that do not have a commercially available digital version are not covered—only books that do.

So, while publishers may now work to have many books with commercial digital equivalents removed from the Open Library, millions will remain untouched—good news for readers and libraries and for preservation. There is simply too much danger that books without commercial value to the publishers—as if that were the only way to judge a book’s worth!—will, even if digitized for preservation, be inaccessible to readers.

The end result of the suit, then, is surely not the complete triumph that the plaintiffs sought. Even so, the ruling seems to continue the slide towards the mistaken imbalance in copyright’s intent we are seeing in the digital era, when publishers want all reading to be licensed for their continuing control to prevent sharing and for their perpetual profit with every read, ignoring the need to “advance knowledge” and the public’s needs. If copyright laws were to be drafted today, one suspects they would fight the long-existing right-of-first sale with every weapon they had. It certainly seems likely that even if the IA were not going to appeal, the publishers would launch another suit to have the digital scan of every book that is not in the public domain removed.

Mr. Freeland concludes “Libraries are going to have to fight to be able to buy, preserve, and lend digital books outside of the confines of temporary licensed access. We deeply appreciate your support as we continue this fight!” The Internet Archive is going to appeal this ruling. Readers, and libraries, should cheer on this fight for controlled digital lending: one of the few tools we have, and should have, to share digital fairly in a time when big publishers prices are unsustainable and Congress seems too indifferent, too cowed—or is it, too bought off?—to create fairer copyright.