Internet Archive Lawsuit May Have Dire Implications for Lenders and Borrowers Alike: Redefining “Ownership” in the Age of Subscription Services

Open Library

In case the story has escaped your personal social media feed or news aggregator, there is a lawsuit unfolding before our eyes which is unprecedented in the history of librarianship. It has the potential to affect all of us, from students to educators to anyone who supports Article I, Section 8, Clause 8, of the United States Constitution which grants the enumerated power “To promote the progress of science and useful arts” and what it means to “own a book.”

Maria Bustillos of The Nation published a startling summary of the Archive.org Open Library lawsuit and what it may mean for libraries and borrowers in the future. Several other major news sites have reported about the suit, the trial of which is set for next year in federal court, and initial disclosures for discovery are already under way. I’ll quote from this particular article liberally as it most effectively and contextually frames the significance of the lawsuit and its potential impact better than any other write-up I’ve read to date.

Bustillos begins by framing the circumstances which led to the founding of the National Emergency Library at the onset of the global pandemic.

When Covid-19 struck, hundreds of millions of students were suddenly stranded at home without access to teachers or libraries. UNESCO reported that in April, 90 percent of the world’s enrolled students had been adversely affected by the pandemic. In response, the Internet Archive’s Open Library announced the National Emergency Library, a temporary program suspending limits on the number of patrons who could borrow its digital books simultaneously. The Open Library lends at no charge about 4 million digital books, 2.5 million of which are in the public domain, and 1.4 million of which may be under copyright and subject to lending restrictions. (This is roughly equivalent to a medium-sized city library; the New York Public Library, by comparison, holds 21.9 million books and printed materials and 1.78 million e-books

Brewster Kahle, the Internet Archive’s founder and digital librarian, wrote in March that the National Emergency Library would ensure “that students will have access to assigned readings and library materials…for the remainder of the US academic calendar.” He acknowledged that authors and publishers would also be harmed by the pandemic, urged those in a position to buy books to do so, and offered authors a form for removing their own books from the program, if they chose.

More than 100 libraries, archives, and other institutions signed on to a statement of support for the program, including MIT, Penn State, Emory University, the Boston Public Library, Middlebury College, Amherst College, George Washington University, the Claremont Colleges Library, and the Greater Western Library Alliance.

…Harvard history professor and author Jill Lepore joined many media observers in praising the National Emergency Library as “a gift to readers everywhere.”

Next she outlined the terms of the suit and the responsive actions which followed:

On June 1, Whitehead’s publisher, Penguin Random House, together with fellow megapublishers Hachette, HarperCollins, and Wiley, filed a lawsuit against the Internet Archive alleging “mass copyright infringement.” The Internet Archive closed the National Emergency Library on June 16, citing the lawsuit and calling for the publishers to stand down. But the plaintiffs are continuing to press their claims, and are now seeking to close the whole Open Library permanently.

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.

Her insights on the indispensability of the Internet Archive follow, demonstrating how critical it is to preserve this organization:

The Internet Archive is far more than the Open Library; it’s a nonprofit institution that has become a cornerstone of archival activity throughout the world. Brewster Kahle is an Internet pioneer who was writing about the importance of preserving the digital commons in 1996. He built the Wayback Machine, without which an incalculable amount of the early Web would have been lost for good. The Internet Archive has performed pioneering work in developing public search tools for its own vast collections, such as the television news archive, which researchers and journalists like me use on an almost daily basis in order to contextualize and interpret political reporting. These resources are unique and irreplaceable.

The Internet Archive is a tech partner to hundreds of libraries, including the Library of Congress, for whom it develops techniques for the stewardship of digital content. It helps them build their own Web-based collections with tools such as Archive-It, which is currently used by more than 600 organizations including universities, museums, and government agencies, as well as libraries, to create their own searchable public archives. The Internet Archive repairs broken links on Wikipedia—by the million. It has collected thousands of early computer games, and developed online emulators so they can be played on modern computers. It hosts collections of live music performances, 78s and cylinder recordings, radio shows, films and video.

Equally importantly, Bustillos draws the parallels between traditional and modern digital libraries like the Open Library:

Like a traditional library, the Internet Archive buys or accepts donations of physical books. The archive scans its physical books, making one digital copy available for each physical book it owns. The digitized copies are then loaned out for a limited period, like a traditional library loan. The physical books from which the scans were made are stored and do not circulate, a practice known as “own-to-loan.”

Harvard copyright scholar and lawyer Kyle Courtney has explained this reasoning very clearly. “Libraries do not need permission or a license to loan those books that they have purchased or acquired,” he said at a recent conference. “Copyright law covers those exact issues.… Congress actually placed all of these specialized copyright exemptions for libraries in the Copyright Act itself.”

And it is next that Bustillos expresses the most fundamental concern regarding the suit, and the dangerous implications that it may bear upon the lending market in the future. There is an undeniably growing global trend of media consumers retiring analog media in exchange for cloud-based access to their digital counterparts. But this trade-off comes at an alarming cost.

Physical media libraries continue to diminish as a younger generation is ushered into a subscription-service-based way of life. Music collections are being replaced with Spotify accounts. Video game consoles are being released with no physical disc drives and instead offer digital downloads which have no value should a gamer decide that they wish to explore other systems. DVD collections are becoming less common as viewers opt to curate their “collections” on services like Netflix. And software packages are no longer purchased once physically and owned thereafter – users are instead forced to pay a monthly subscription fee for continued access. 

Could we see the same thing happen with digital books? As a lifelong cataloger and curator, I can’t imagine relinquishing my physical libraries and chaining myself to a perpetual monthly slow-bleed of non-ownership. So much of my identity is embodied in my curation. But if publishers have their way with the lending market and related legislation, we may be forced into just such a reality.

Bustillos explains:

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.

The Internet is 31 years old, and in those three short decades the virtual world we’ve come to depend on has slowly eroded the idea of private ownership—literally, your right to call your belongings your own. Things you used to buy just once, such as your own private copies of software like Photoshop or Word, your privately owned vinyl discs and CDs, or movies on VHS—have increasingly begun to come through dispensing services you pay for every month, from vendors like Adobe, Netflix, Hulu, and Spotify. And you’ll never stop paying.

“Libraries buy, preserve, and lend,” he said. “That’s been the model forever. [Libraries] actually supply about 20 percent of the revenue to the publishing industry. But if they cannot buy, preserve, and lend—if all they become is a redistributor, a Netflix for books—my God, we have a society that can get really out of control. Because if a publisher maintains control over every reading event, who’s allowed to read it, when are they allowed to read it, if they’re allowed to read it, and be able to prevent anybody, or particular regions, from being able to see something, we are in George Orwell world.

Another journalist, Mike Masnick of Techdirt was equally impassioned and emphatic about the erroneousness and fallaciousness of this lawsuit.

For many years, we’ve said that if the public library were invented today, the book publishers would sue it out of existence. It appears that the big book publishers have decided to prove me right, as they have decided to sue the Internet Archive for lending ebooks without a license.

While many publishers and authors declared this to be “piracy,” that did not square with reality. The Internet Archive was relying on a variety of precedents regarding the legality of libraries scanning books and lending books, as well as around fair use, to argue that what it was doing was perfectly legal. Indeed, the deeper you looked at the issue, the more it looked like the publishers and authors were upset with the Internet Archive for being a library, since libraries don’t need special licenses to lend out books.

Except the identical argument applies to public libraries lending physical copies as well. It does not “grossly exceed legitimate library services.” It makes books it has in its possession available for borrowing. Just like a library. Yes, the books are digitized, but libraries also distribute exact copies of books in their entirety for reading purposes to the public for free. Including voluminous numbers of books that are currently commercially available.

That’s a LIBRARY.

Masnick reiterates this theme of how the Open Library is precisely that throughout his article. He explains:

Books have long been essential to our society. Fiction and non-fiction alike, they transport us to new worlds, broaden our horizons, provide us with perspective, reflect the evergrowing knowledge of humanity in every field, spark our imaginations and deepen our understanding of the world. Yet, books are not self-generating. They are the product of training and study, talent and grit, perseverance and creativity, investment and risk, and untold hours of work.

That’s right: and for tons of people they way they read those books is from a library.

The publishers have been chipping away at “libraries” for years. Before ebooks, libraries could buy books and lend them out. They didn’t need a special license. However, in recent years, publishers have rushed into the opportunity created by ebooks to change that, and to require licenses (crazy, expensive licenses) for ebooks. Just last fall we noted how publishing giant Macmillan (which, somewhat oddly, is the one big publishing house that is not a plaintiff) had gone to war with libraries, using its extreme ebook pricing and licensing terms to basically kill the market for ebook library lending.

But also looking over that list, I see a bunch of books that I know are read in schools — meaning that these publishing houses likely have just screwed over a bunch of teachers and students, many of whom already have physical copies of books, but find them inaccessible for the kids to read while we all still remain under lockdown.

So much for those books being “essential to our society.”

He closes his write-up emphasizing:

…there are very real concerns that this fight could bankrupt the entire Internet Archive.

I do wonder if the authors who spoke out against this really want to shut down such an important institution just so they can sell a couple more books.

I suspect he is quite right, indeed.

Masnick provides numerous links to sources corroborating each of his points, but for a balanced perspective, I also made sure to search for articles challenging the claims made by these writers in an effort to counter their arguments. I could only find one opposing document, penned by Aja Romano, an Internet Culture Reporter for Vox.com. Romano rebukes reporters for the sense of urgency expressed by those wary of the lawsuit’s implications and says the suit is “not as dire as you may have heard.”  

Romano does give credit to The Internet Archive for its achievements, noting that the Wayback Machine comprises a digital collection of roughly 390 billion pages dating back to 1996 – a 10-petabyte collection and the deepest archive of internet history in existence. But she states that “the reporting surrounding [the lawsuit] was hyperbolic and alarmist.” 

Regarding the impact of the suit on the sustainability of The Internet Archive, Romano notes the following:

If the court awards the plaintiffs the maximum amount provided under the law, the most the Internet Archive would have to pay would be $19 million — essentially equivalent to one year of operating revenue, according to IA tax documents. That’s a huge setback, but for the IA, a tech nonprofit that relies heavily on grants and public donations, it’s not the major death blow it might seem to be.

Even if that is the case, Romano fails to address the suggested implications that such a ruling could potentially have on the market as a whole.

So what do you think? Does the Open Library lawsuit set a precedent for all lenders which could potentially transform the library system into a subscription-based “reading as a service” operation? And might these extreme ebook pricing and licensing terms kill the market for ebook library lending altogether?

Hold onto your books, everyone.

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