Libraries Need More Freedom to Distribute E-Books; Publishers' Profit Stands in the WayRoundup
tags: copyright, intellectual property, libraries, E-books
Dan Cohen is the Vice Provost for Information Collaboration, Dean of the Library, and Professor of History at Northeastern University.
Last week, a district court judge in New York ruled on Hachette Book Group, Inc. v. Internet Archive, a case that is likely to shape how we read books on smartphones, tablets, and computers in the future. Although the case hinged on technical details of copyright law, the source of the conflict is much less abstract. It’s a story about the halting, uneasy transition of books from paper to digital formats, and the anxiety of publishers and frustration of librarians about that change. The decision—which was in favor of the publishers—will add to librarians’ frustrations. It will impoverish readers across the country seeking access to digital books, and over time diminish the library as a democratic institution that provides broad collections to everyone.
In the spring of 2020, when nearly all libraries suddenly closed because of the coronavirus pandemic, the Internet Archive, a nonprofit that preserves and provides open access to a wide range of media online, and which is designated as a library in its home state of California, expanded a program that allows those who have registered on its website to electronically borrow scanned copies of printed books in its possession. Although many of these digitized books were still in copyright, the Internet Archive asserted the justness of this program not only by the special circumstances of shutdowns but also by appealing to a novel concept called Controlled Digital Lending (CDL).
CDL, developed as a legal theory a bit more than a decade ago by the Georgetown University professor and law librarian Michelle Wu, asserts that libraries have a right to create digital surrogates for their collections, enabling each library to loan out either the digital version or the hard copy of any material it owns (but not both at the same time). To its advocates, CDL represents an extension of normal library operations from the physical to the digital realm, and a helpful service to library patrons. For publishers, CDL represents an unruly library practice and a threat to their profits.
On Friday, the judge sided almost entirely with the publishers. The Internet Archive “argues that its digital lending makes it easier for patrons who live far from physical libraries to access books and that it supports research, scholarship, and cultural participation by making books widely accessible on the Internet,” Judge John G. Koeltl wrote in his pointed ruling. “But these alleged benefits cannot outweigh the market harm to the Publishers.”
The Internet Archive plans to appeal the ruling, but if the decision stands, libraries will lose the agency to digitize and lend the print books they have collected and stewarded, and instead will have to defer to, and pay, publishers for separate digital editions of in-copyright books. Over time, this ruling may change the very nature of libraries—how they operate, their finances, whom they are able to serve, and the breadth of their collections.