Maryland Ebooks Lawsuit Over and A Save-the-Date

As Jim Milliot reports in an article in Publishers Weekly, the Association of American Publishers (AAP) has filed that it will not seek costs and legal fees from Maryland in the lawsuit over the state’s library ebook bill.

Milliot notes that the AAP says “its decision was limited to this particular case, and that it ‘expressly reserves all rights, claims, and remedies that may be applicable with respect to any future legislation or other matter’.”

Thus ends—for now— Maryland’s effort to get library ebook costs that approximate the generally far lesser costs that libraries pay for print. It has been a valuable learning experience for those of us in libraries seeking fair terms. The law’s language—borrowed from bills previously brought forward in New York and requiring the publishers to offer fair terms—was based on a a still earlier effort to put forward legislation at the federal level. At the federal level, this language would not have been subject to a preemption challenge. A different ruling was possible in the Maryland case, but this ruling, which pretty much states that publishers/authors may charge whatever they like and license (or not) to whomever they like, is the one we have to live with. Clearly a different tactic will have to be used to used. Massachusetts—the only state with a bill still pending—has changed to make the licensing a matter of fair consumer law, with libraries not able to engage in unfair licenses. Maryland advocates are working on a draft based on state contract law. Libraries getting state funds cannot enter into unfair contracts, with the term “fair” defined in the potential bill. Neither bill can be challenged on the basis of federal copyright laws preempting them. States are perfectly justified in regulating how state funds are spent. The publishers are not compelled to change their prices. They will, however, have to negotiate fair terms if they wish to do business with libraries in these states. We shall have to see if these efforts can become law and what effect they will have if they do. It is important for libraries that we continue the effort. The ReadersFirst Working Group is gathering evidence that Big 5 library prices are in many cases going up. Our ability to acquire and sustain rich digital collections, already challenged, is becoming less and less.

It would be churlish not to offer the AAP congratulations. As my colleague Carmi Parker has pointed out at length in a position paper, the AAP has made some false claims in their public statements about the Maryland law. They are doing their job, however, and have prevailed in this Maryland case. It is gracious of them to let the matter rest. I wish Maryland had won and the publishers had negotiated (we never intended to apply the law). But we in libraries are not sore losers. For now, I’m glad the matter is over and we can concentrate on future efforts.

Speaking of library ebook laws, plan on attending a DPLA/COSLA/ReadersFirst webinar on the topic on September 27, 4 pm Eastern Time. We’ll have a great panel:

• Kyle Courtney, Copyright Advisor, Harvard University and Co-founder and Board Chair, Library Futures

• Alan Inouye, Senior Director, Public Policy and Government Relations, ALA

• Brianna McNamee, Director of Government Relations and Advocacy, New York Library Association

• Irene Padilla, Maryland State Librarian

Register here.

A Study of the Library Digital Content Ecosystem in 2022

In order to complete their University of Washington MLIS degrees, Megan Rosenfeld and Erin Andreassi have completed a study of the state of library ebooks in 2022. This is a dauting task: between legislation proposed or passed but legally challenged, new or changing license models and content, and continuing advocacy by librarians, publishers, authors, vendors, and lobbyists, against a backdrop of the social and library usage changes wrought by the COVID pandemic and economic inflation, the sector is complex and in flux. The authors have tried to present the various views accurately and objectively. They interviewed a wide-ranging group of influencers, but (perhaps not surprisingly but nonetheless disappointingly) they found librarians and writers more forthcoming than publishers. (Disclosure: many members of the RF Working Group were interviewed.) The result is a clear, carefully presented, and sound overview of the issues we face making digital content sustainably accessible under challenging circumstances in early to mid 2022. It will be useful in the future as a snapshot of this moment. The author have graciously allowed RF to post the study un a Creative Commons License. For that, Erin and Megan, we thank you! Questions or comments may be directed to the authors by emailing ReadersFirst. The paper, “Digital Books in Libraries: Moving Towards a Sustainable & Equitable System of Access to Information,” may be downloaded in PDF here: Digital Books in Libraries We have also posted this paper in our Projects/Studies page for future views here.

LF Amicus Brief Supporting CDL in Hachette Et. Al. v IA

Library Futures has filed an amicus brief (Friend of the Court) supporting the practice of Controlled Digital Lending in the HACHETTE ET. AL V INTERNET ARCHIVE lawsuit, in which the American Association of Publishers (AAP) and Hachette, Harper Collins, Wiley, and Penguin Random House are suing the Internet Archive (IA) over its Open Library’s use of Controlled Digital Lending (CDL).

That the publishers might think the relatively poor quality scans on the Open Library—especially problematic as a user experience on smart phones—are preventing libraries from licensing their (admittedly generally outrageously priced) commercial epubs is farcical. That they allege harm because readers turn to these scans instead of buying is laughable. They probably lose more in torrent site piracy in a day than they have lost legitimate reader sales in the decade the Open Library has been around. But suing they are, and harm they claim. And all libraries have a stake in CDL, hence the amicus brief.

You can read/download the brief here. Kyle Courtney and Juliya Ziskina are its authors. You can also see photo of the brief being hand delivered.

Every Library Institute (ELI) has joined in support. Read their nicely detailed explanation here.

ReadersFirst has also joined.

Here are some excerpts from the brief.

• “CDL uses technology to effectuate a library’s customary mission to acquire, preserve, and provide community access to books for library patrons. Simply put, CDL is a different way of utilizing the centuries-old method by which libraries have loaned the books on their shelves for the public to read.” Yes—the books are paid for, the authors and publishers have been paid already, and the digital scans are shared in one owned/one loaned under fair use with digital rights protection.

• “As technology evolves, libraries continually adapt their services to provide access in innovative ways to better serve their patrons. Each time libraries embrace access-expanding innovations, the courts have repeatedly acknowledged how these practices benefit the public despite publishers’ objections.” Yes—we need to serve where people expect us to be. The publishers are expanding their power under copyright in the digital realm to erode and overturn library’s long-standing right to serve the public. This is to ignore copyright’s dual aim of protecting authors AND advancing knowledge.

• “CDL involves the digitization of paper books, which results in inferior graphic quality and differing customization features. This makes it more likely that the book will be used out of necessity, or only briefly, rather than supplanting the market for the work. The low quality scans (in addition to the digital rights management protections) also make it less likely that downstream bootleggers will make copies of the work. The Plaintiffs claim that CDL serves the same function and purpose as their business. However, despite both disseminating the contents of books, their objectives are substantially different. As with traditional library lending, CDL primarily serves those who only need temporary access to a work or lack the means to purchase the work. Libraries have no profit goals and are motivated by education, the dissemination of knowledge, and preservation.”

CDL allows for fair sharing through Interlibrary Loan. It allows for preservation. It helps those marginalized by income to be informed readers. The existing licensing from these publishers (Harper Collins, it must be noted, is the fairest) directly prevents the first two of these three core functions, and greatly complicates the third. The publishers and the authors have been paid for the works under consideration. In short, as eloquently stated in the brief, “CDL is a feature of ownership, not a substitute for licensing. It is not intended to replace or circumvent a library’s existing eBook holdings, but it can serve as a powerful tool for bridging the gap between print and electronic resources for readers and researchers.”

Librarians must hope that the practice somehow emerges from this case as allowable.

Interestingly, the attorneys for the publishers did not consent to this amicus filing. Why? LF, ELI, and certainly RF members have years of experience in library digital content. We can discuss the practice and effects of licensing, the use of CDL, and the ways that libraries serve the public with true expertise. Shouldn’t the judge hear from library experts? It seems only fair.

Poems for the Ages from Audible

Every once in a while it’s nice to jump off my soapbox, leave off scolding the publishers, and simply celebrate a nice development.

On June 17 of this year, I licensed the first Audible audiobook title for Maryland and, I believe, the first Audible book ever licensed by a public library. It came, of course, through the Palace Marketplace.

I wanted it to be something memorable if not necessarily high circulating.

I’m delighted to report that Classic Love Poems as read by Richard Armitage (you know, Thorin Oakenshield in Peter Jackson's The Hobbit trilogy) is at once mellifluous but passionately read and sounds great via the Palace app. An Audie Award Finalist for Best Male Narrator in 2016 with pieces from Shakespeare, EB Browning, George Eliot (mercifully not T.S., who didn’t much go in for love as a theme, and when he did it was usually pretty sad), Shelley, Byron and others, it’s a listen for the ages.

I plunked for the 2 years unlimited circs but one-at-a-time model. At $25, it was a nice enough deal. I would have liked a perpetual access model, but this cost isn’t at all bad. I won’t be surprised to see it get some circ, especially at Valentine’s. I thought about the 40 circ (10 simultaneous model), but decided two years would do for now.

To those of you wondering about the schedule for Audible in Palace, titles will roll out as IBNs are added and the file formats are worked out. Some 100 titles are available now. Expect 20,000 within a year or two.

If you live in Maryland and have a card to a Palace library (there are nine of us so far), check it out. Will you like it? Let me count the ways.

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.

Library Futures’ State Ebook Bill Template and AAP Out For Blood

Library Futures’ Kyle Courtney and Juliya Ziskina have released a Policy Statement and Draft eBook Legislative Language. They have helpfully summarized the state of the various ebook bills and provided a path forward with bill language that differs from the language in the Maryland law that did not withstand a court challenge.

While a different judge might rule differently on laws with the Maryland language, it is good to see an alternative that learns from the Maryland experience. That law was based on a draft that would have worked at the federal level but came a cropper as a state law, at least in one ruling. So, how best to let state bills work—and until libraries can get federal legislative traction, it will be up to states to lead in addressing the unfair terms we get from many publishers.

Please go straight to the source:

Library Futures supports legislation that aims to equitize the eBook marketplace. To that end, we have developed model legislative language that avoids the problematic Maryland language and that we therefore believe will hold up against legal challenges. In short, we propose model legislation grounded in state consumer protection, state contract law, state procurement law, and contract preemption. Our policy statement document explains the legal rationale behind our proposed model bill. You can also view an interactive map of current legislation and sign up for updates on Library Futures’s policy activities. Thank you to our community of experts for their edits, feedback, and input into this statement and bill, and thank you to Readers First and the community of library advocates who have worked for equitable ebook legislation in their states.

We look forward to working with you to ensure that libraries can fulfill their mission of preserving and providing broad, open, non-discriminatory, and equitable access to information and reading materials to the public. If you are interested in learning more or getting involved, please stay tuned for a webinar in early August. Until then, sign up for updates!

Libraries will not be own their own if they wish to move forward using draft language. Library Futures and others are standing ready to help.

Those seeking still more information to help talk with legislators would do well also to see ReadersFirst’s Elending Position Paper, which sets out the inequities libraries face in great detail and also undermines some of the false claims made by opponents of state ebook efforts, and our Publisher Price Watch, your library consumer guide to publisher charges.

In other news, as reported by Andrew Albanese in PW, the AAP is seeking $300,000 in legal costs from Maryland in that legal matter. Since the AAP itself avoided paying costs in their losing effort with Georgia State University, one might think they wouldn’t have the gall to ask. One would of course be wrong. This seems a pretty transparent effort to stop activity in other states. It won’t work. First, let’s hope the judge sends them home without money. Second, many states remain undaunted. If one bill becomes law, however, the publishers may decide not to deal with libraries in that state under the bill language set out in Library Futures. If that happens, all libraries will need to stand together for the good of our readers.

It is all-too-easy to see these efforts as anti-publisher and anti-author. They are not. Rather, fair prices could create an inflection point, when libraries begin to allocate more to digital. The publishers and vendors will get more, not less. More authors will see royalties—and new or less best-selling authors would benefit, especially the diverse authors that the publishers are saying they wish to promote. Together, we could extend reading, fight piracy, and expand the next generation of readers. It is of course hazardous to generalize about any profession, but I’d stake a fair bet that most librarians are not naturally eager for a fight. When fighting for our readers, we are fierce. We won’t quit. State efforts will continue. Still, I invite the publishers to talk. Give us 26 loans or two years metered at print retail prices, and preferably a perpetual option at say three times that amount and RF, at least, will stop ebook bill advocacy and see what happens. Macmillan, how about you? You tried an “experiment” in 2019. How about a one year experiment now on these same terms—it’s still a better deal than you get in print. Harper Collins, you generally charge retail plus 15%. Try dropping the 15%, adding a perpetual at higher cost, and see what happens? We could end the rancor, increase reading (and arguably consumer sales), and concentrate on the real need—growing and keeping readers.

Wither Reading? A WordsRated Study

Nick Rizzo from WordsRated has posted about a 2022 study of American reading habits. Based on a survey including members of Gen Z, Millenials, Gen X, and Boomers, the study casts a cold eye on the future of reading as a pastime.

The study differs from some industry (or perhaps library) survey in that it excludes listening to audiobooks and counts a book as read only if has been finished.

A few of the findings:

• More Americans have not read a book in the past year than have read one

• Nearly a quarter of Americans haven’t read a book in the last three years, while over 10% haven’t read one in the last decade

• Fewer younger people are reading, and they read less than older Americans, with the average Boomer completing nearly three times as many books in the last year than the average Gen Z respondent.

The study does not look at causes. Based on observation, one might speculate that other activities are supplanting reading among younger respondents, including gaming, social media, streaming video, perhaps audiobooks, and different learning styles being privileged in schools. This is not to attack the choices of younger people. It does suggest, however, what ReadersFirst has warned previously: that “we are approaching what could be a crisis in the book industry.”

The study suggests one bright spot: that people who finish even one book in a year often then read still more, having a reading habit in which they will continue. In light of its other findings, the study is perhaps overly optimistic in concluding “The silver lining in the data is that all it appears to take is 1 book. If we can convince people to pick up and read one book, they are significantly more likely to catch the reading bug and carry on from there.” Convincing people to pick up even the one appears to be getting more and more difficult.

Publishers making ebooks available through libraries—not all, and we thank those who are true partners—often point to a lack of “friction” as a justification for what libraries consider unreasonable terms. They aver it is just “too easy” for people to get titles. Why, people don’t even have to go to the library! Let us ignore for now the many “frictions” that are in place—lack of availability of many titles due to long waiting lists, lack of user technological ability, libraries putting limits on the number of titles borrowed to keep within budget—not to mention that most library ebook readers also avidly visit libraries and get far more book in print form.

Let us look instead at how this so-called reason is bad for authors and publishers. If reading as a pastime is to have a future, we need LESS friction and MORE people reading—even just one book. Libraries help create and sustain readers. Not to worry, publishers—they will discover books through us and buy. Isn’t it time to try something new—give libraries reasonable ebook terms and at least see if we can’t generate reading? It’s your livelihood but it is ours, too. Libraries still mean books. Without them, in print and digital, our programs, web access points, maker spaces, and hundreds of educational and social services will not create enough visits to justify our existence. Negotiate with us. Long term, we might both win (though it will take work having the reading bug be catching in the future) . . . but separate, we shall surely lose. And reading will wither.

A ReadersFirst Position Paper: "Elending Legislation"

Why have eight states (with more in the planning stages) put forward legislation to address library digital content licensing? What do they hope to gain? Pushback from various lobbying groups has been strong and has included some, um, interesting claims, for example that librarians are in league with Big Tech to destroy copyright, that the legislation will harm publisher and author profit and royalties, that library lending is hurting publisher sales, and conversely that library lending is so healthy that nothing could possibly be amiss in the digital market place. Is there any merit in these counter claims?

Various ReadersFirst posts have addressed these questions in the past. Thanks to Carmi Parker, however, we now have a single position paper that gathers the many skeins. You may visit our Position Paper page to download or get it directly here.

This paper does not speak for everyone in libraries and the various legislatures involved. Whatever bizarre theories may emerge about a non-existent “Big Library” coordinating efforts nationally, we are simply not that organized. Our various activities are much more grass roots, with librarians talking to legislators, who see see the facts and determine that something be done. The paper does, however, set out the need for change and discredits many of the claims made by those opposing the various legislative efforts. Librarians will be inspired by the arguments for print-equivalent digital pricing and perhaps work with their legislatures to effect change. Legislators at the state and federal level will find ample justification for action here, though examples from their states will certainly be an added reason. Authors and publishers may perhaps understand WHY libraries are advocating and also perhaps see that negotiation of terms may be beneficial for all. At 31 pages, the paper does require some careful and sustained attention. ReadersFirst hopes you find it enlightening and bracing.

Maryland Ebook Lawsuit Outcome

As noted by Andrew Albanese and many other outlets, a final order has been issued in the Maryland Ebook Law hearing.

"In its February 16, 2022 memorandum opinion, the Court determined that the Maryland Act likely conflicts with the Copyright Act in violation of the Supremacy Clause," Boardman's opinion reads. "Although neither AAP nor the State has moved for summary judgment on any claim, they agree a declaratory judgment may be entered... Therefore, for the reasons stated in the February 16, 2022 memorandum opinion, the Court finds that the Maryland Act conflicts with and is preempted by the Copyright Act. The Act 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'”

A permanent injunction has not been issued. Albanese notes that one aspect remains: "The only outstanding issue is AAP’s request for an award of reasonable costs and attorneys’ fees," the footnote states, adding that the AAP "has advised the Court that the parties intend to brief whether AAP is entitled to fees and costs under those statutes." Oh, the AAP wants Maryland tax payers to shell out money when they advocate for more tax payer money for ebooks? It is of course in keeping with their actions all along.

AAP President and CEO Maria Pallante is of the opinion that this outcome will discourage other states.

She is of course wrong.

This ruling is not a precedent for another court, which may rule differently. And other laws may be tweaked to try a different path to get the publishers in the mood to negotiate—the only real intention of the Maryland law in the first place.

In the meantime, the Authors Guild has weighed in: “The Authors Guild has long been a champion of increasing funding to libraries so they can purchase more digital licenses they need to serve their patrons and communities – a far better method of ensuring libraries can acquire robust collections than controlling ebook and audiobook prices.

Talk about wrong! In a time of inflation, with libraries not seeing funding increases and struggling to meet expenses of all kinds, do these people really expect extra ebook funding? Who is going to provided it? The Authors Guild? What a joke. These lobbyists clearly have no idea of how libraries struggle.

It is of course very generous of the Authors Guild to propose that we get more money so that we can continue to pay the bloodsucking usurious rates the big publishers charge for library ebooks. Just look at our Publisher Price Watch. Need any more evidence that licenses for items we don’t even own and can keep for limited times are UNREASONABLE? I would actually be ashamed to ask for more under the given terms. “Dear legislators, please give us more ebook money so we can continue to pay exorbitant costs.”

We are fortunate in that a ruling may be different if a similar bill becomes law and is challenged. Libraries uphold copyright, but the publishers are using developments in book lending to evade the advantages we have under copyright and to disadvantage libraries with unreasonable digital prices.  Half a billion downloads may have occurred last year, but two issues remain.  First, as costs goes up—as most costs for libraries currently are--and library funding remains static, what we have achieved in the past will no longer be sustainable. And it isn’t any use for these lobbyists to glibly say they support libraries getting more funding. The only way publishers can help is price negotiation to reduce costs to something like print equivalency. Second, the current pricing models are bad for the publishing industry as well as for libraries, preventing the discovery of new and often more diverse authors. As increasing costs pressures and the unfair rates drive down our ability to provide content, a premium will be placed on only high circulating content. We will have to seek other ways to deliver diverse content as the publishers price themselves out of the library market, abandoning their partnership with libraries to the detriment of readers, their writers, and ultimately their bottom line as reading gradually but continually declines as a leisure activity.

We have limited funding. We really want the content, but only on reasonable terms. We continue to hope for publisher negotiation—real negotiation!—of terms. Until that happens, state—and, yes, other!—efforts will continue. It is the only responsible thing to do, for our states and for our readers.   

CDL Suit Moving Into Summary Judgement Phase

As reported today by Andrew Albanese in Publishers Weekly, the judge in the AAP/Publishers lawsuit against the Internet Archive (IA) has agreed to hear summary judgement motions. Based on these motions, the court can decide the outcome of the case without going to trial.

As Albanese points out, attorneys for the IA argue that Controlled Digital Lending (CDL) is covered under fair use. A library takes a print book it owns, create a digital copy, archives the print copy, and circulates the digital copy as if it were print under copyright. The own-to-loan ratio of 1-1 remains the same. The digital copy is protected to prevent unauthorized duplication and it is loaded for a limited time, hence the “controlled” aspect of the lending.

They argue that “To the extent that the feared market harms are the very same ones that would flow from handing a particular copy to a library patron, or mailing it to them, rather than lending that copy digitally, those harms are not ones that copyright takes into account. Every copy Internet Archive lends out was bought from the publishers, and it is not fair to demand that libraries pay again to lend the copy they already own.”

They continue to say that libraries must be given the ability to implement CDL legally and the case is of landmark importance because it “will shape how libraries continue to serve the public interest in the digital age.”

Attorneys for the AAP/Publishers counter that the IA is not a library but rather a “massive copyright infringement enterprise.” They further contend, as Albanese explains, that CDL “has no basis in law” and that "the creation of an e-book from a print book falls under the author’s exclusive right to create derivative works.”

This first point is dubious. Calling names doesn’t make a legal argument. On what basis is the IA not a library? It has collected and owns print books that it has digitized, and it is lending those titles without profit. How is that not a library? Were the Institutional and Social Libraries of the 1800’s not libraries? Is my ebook collection somehow more a library than the IA because I have had to license (generally at exorbitant rates when compared to print) titles rather than digitize print? If I digitized print books as a public library, would the digitization somehow make those titles “non-library”? If name calling is the best that these folks can do, we could hope for a summary judgement against them. A trial seems a more likely outcome.

This second point is correct to the extent that CDL has not been legally settled previously, though misleading if it aims to suggest that strong arguments for its legal basis have not been posited. Of course, this is precisely what this lawsuit is about. It isn’t at bottom about the IA’s Open Library. It is about CDL, and CDL itself at stake. Libraries all over the country have a stake in the outcome. Even as we work on laws to make licensing terms more fair, we have to hope that this second prong of our (very much uncoordinated) efforts is validated. Our ability to share millions of works that the publishers will never digitize (since they won’t make money) fairly and sustainably hangs in the balance.