The Internet Archive has announced its appeal of the Hachette vs. Internet Archive case.
The Internet Archive’s Chris Freedland posted thusly: “As we stated when the decision was handed down in March, we believe the lower court made errors in facts and law, so we are fighting on in the face of great challenges. We know this won’t be easy, but it’s a necessary fight if we want library collections to survive in the digital age.”
IA Founder Brewster Kahle adds “Libraries are under attack like never before. The core values and library functions of preservation and access, equal opportunity, and universal education are being threatened by book bans, budget cuts, onerous licensing schemes, and now by this harmful lawsuit. We are counting on the appellate judges to support libraries and our longstanding and widespread library practices in the digital age. Now is the time to stand up for libraries.”
With publishers pursuing the suit even after the IA dropped the National Emergency Library, which did not strictly adhere to Controlled Digital Lending (CDL) parameters, it seems clear that the suit is all about CDL. The publishers are driven by money—not that authors always benefit—and ensuring that licensing is THE (only) way digital is used in libraries creates more revenue than allowing libraries some of the rights they have with print. CDL after all is an arguably legal way to get the right to share digital titles as if they were print, one person at a time.
The surprise—unpleasant for the publishers—is that the recent ruling allows for CDL as long as a print title does not also have a digital version for license.
The problem is that this “allowed” CDL use is a technicality of sorts. The judge said that the suit as presented only allowed a ruling on the digital titles.
Expect the publishers, either in the appeal or in some other suit, to challenge this use, even though a library digital copy of a print book—especially of one out-of-print—costs them no revenue if shared via CDL.
We can hope that a different judge will consider this part of the copyright law: “Congress shall have Power . . . To promote the Progress of Science and useful Arts.” Digital copyright is seriously unbalanced against libraries and the greater public weal. If so, the IA has a chance in their appeal, asking to do what libraries can do in print: share fairly acquired texts fairly.
We must hope that even if the IA doesn’t carry the day completely, that print books without digital versions somehow remain allowed under CDL. Libraries can already create digital copies for preservation, but what good are those copies if they can’t be shared? This is to doom many works to oblivion simply because the publishers see no commercial value in them. Keeping digital copies around until the works eventually become fair use is not a viable option.
Doesn’t this use seem a fair compromise? Oh well, don’t expect to see it become law under the current makeup of Congress, with too many legislators looking out for corporate rather than human welfare. (And no, corporations are not human nor “people.”)
There is much to fear: losing CDL, a valuable tool and one of the few ways we can hope to preserve and share sustainably, especially as copies of print works invariably become fewer and fewer and ultimately too rare or valuable to share via traditional interlibrary loan.
Libraries really can’t survive without some sort of publishing industry. We might wish for some dialog. But that would be a foolish wish in a time when industry after industry wants to destroy ownership and promote licensing. Wishing for better from their publishing partners in advancing literacy then—for aren’t we one the same team, in the end?—RF wishes that libraries will support the IA and CDL and fears only our silence in the face of vast corporate power and wealth. Stand up for our library users. Stand up for ourselves.
