It was the worst of times, it was the worst of times: The Internet Archive’s Misguided Effort to Liberate Books
By Neil Turkewitz
The worst of times. I suppose that could apply to just about anything at the moment, although I have to say that at least in some fundamental respects, recent developments in society — while terrifying, seem to suggest the potential for enlightenment and reform. A broader understanding of our interdependence and the importance of addressing systemic issues of race that undermine the very health and stability of our society and the ideals upon which it is theoretically based. I have some hope that out of present fires the foundations of a new and better society will emerge. That after far too much time pretending that we were color blind, that we are beginning to talk about and confront race and its myriad implications. That we are beginning to realize that racism isn’t just about personal prejudice, but about hidden privilege. That none of us are free while some of us are imprisoned. And that black Americans must not continue to pay the costs to preserve the liberty of white society. I get the sense that for many, these past two weeks have been an eye-opening drama of what it means to be black in America. And perhaps…just perhaps, we will not lose that understanding when things eventually begin to normalize (whatever that means).
Alas, there are other areas in which based on patterns and political opportunism, I see less opportunity for enlightenment and humility. Again, this could probably apply to a number of arenas, but here I refer to the conduct of the Internet Archive and their attempt to seize a moment of crisis to advance a cherished and long-held agenda — to free books from the iron grips of publishers and to make them available to the public. Now I know that doesn’t sound like an evil plan. I mean, who doesn’t want free access to books and other materials? Isn’t free the preferred price point for all consumers? But bear with me for a moment, for the evil is somewhat disguised but evident in both substance and process. Like other copyright skeptics, Brewster Kahle and the Internet Archive take the individual creator out of the equation and portray a battle between corporate media interests — in this case, publishers, and the public. They only focus on the end product — the book, while ignoring the equities of the author. They talk about artificial scarcity and non-rivalrous goods as if that somehow proved the value of their arguments because they only see the book which exists as a finished product. But it doesn’t start as a finished product. It starts with an idea, which is over time worked into an expression that, if it works, speaks to its audience.
The “artificial scarcity” of copyright is designed to nourish something that is indeed scarce: greatness of authorship. Greatness that enriches our lives. That informs and delights. Taking authors out of a discussion of copyright is deceptive and inexcusable. You can’t love books/reading and hate authors. And Kahle and the Internet Archive surely know that. But Kahle has dreamed of recreating the Library of Alexandria for some time. He sees it as his legacy. He doesn’t want to be remembered as the guy that sold a company to another company for millions of dollars. They are a dime a dozen. His hubris is far greater than that. And when he saw an opportunity to strike in the midst of a health crisis, he moved without delay.
This all came into starker relief when a number of publishers filed a lawsuit recently challenging both the existing Open Library, and its more extreme form, the National Emergency Library. The complaint is a great read, and I fully recommend it to anyone interested in this area. I have, however, assembled a number of excerpts which you may consume either as an appetizer, or a main course as you wish. I have tried to capture the key elements in understanding the legal — and moral — claims underlying the legal action, and why you should care — even if you don’t think about copyright. If you are only going to read one sentence of the complaint, read this. In a manner of speaking, it says it all, and exposes the extreme hypocrisy of this project: “No one reads a James Patterson thriller after downloading a scan of the book from Open Library and then declares, “I liked it so much, I am going to read an authorized ebook again on my Kindle for a different experience.” Kahle styles himself as a kind of Robin Hood. In reality, he shares much more in common with King John* and the Sheriff of Nottingham.
[*The original version mistakenly referred here to King Richard. Luckily, a kind and observant reader advised me of my error for which I am exceedingly grateful.]
ON BOOKS
“Books have long been essential to our society…[They] transport us to new worlds, broaden our horizons, provide us with perspective, reflect the ever- growing 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.”
“The creation, publication, and distribution of books is an ecosystem. IA disaggregates itself from this ecosystem, ignores the law, and asserts that its goal of providing free copies of books somehow excuses it from any responsibility to those who have created the works and hold exclusive rights under the Copyright Act. Its goal of creating digital copies of books and providing them to whomever wants to download them reflects a profound misunderstanding of the costs of creating books, a profound lack of respect for the many contributors involved in the publication process, and a profound disregard of the boundaries and balance of core copyright principles. IA does not seek to “free knowledge”; it seeks to destroy the carefully calibrated ecosystem that makes books possible in the first place — and to undermine the copyright law that stands in its way.”
ON THE ROLE AND IMPORTANCE OF LIBRARIES
“Publishers have long supported public libraries, recognizing the significant benefits to the public of ready access to books and other publications. This partnership turns upon a well-developed and longstanding library market, through which public libraries buy print books and license ebooks (or agree to terms of sale for ebooks) from publishers, usually via book wholesalers or library ebook aggregators. IA’s activities are nothing like those of public libraries, but rather the kind of quintessential infringement that the Copyright Act directly prohibits.”
“Public libraries are among the most cherished institutions in this country. To Plaintiffs, libraries are not just customers but allies in a shared mission to make books available to those who have a desire to read, including, especially, those who lack the financial means to purchase their own copies. Much like a publisher must decide which books to invest in — balancing all sorts of considerations — librarians must make reasoned decisions about which books to purchase in order to best serve the needs of their communities.”
ON THE ILLEGALITY OF CONTROLLED DIGITAL LENDING
“IA defends its willful mass infringement by asserting an invented theory called “Controlled Digital Lending” (“CDL”) — the rules of which have been concocted from whole cloth and continue to get worse. For example, at first, under this theory IA claimed to limit the number of scanned copies of a title available for free download at any one time to the number of print books of that title in its collection — though no provision under copyright law offers a colorable defense to the systematic copying and distribution of digital book files simply because the actor collects corresponding physical copies. Then, in the face of the COVID-19 pandemic, IA opportunistically seized upon the global health crisis to further enlarge its cause, announcing with great fanfare that it would remove these already deficient limitations that were purportedly in place. Today, IA offers an enormous universe of scanned books to an unlimited number of individuals simultaneously in its “National Emergency Library.” IA’s blatant, willful infringement is all the more egregious for its timing, which comes at the very moment that many authors, publishers, and independent bookstores, not to mention libraries, are both struggling to survive amidst economic uncertainty and planning deliberatively for future, changing markets.
IA’s self-serving assertion and promotion of “Controlled Digital Lending” as both an actual legal doctrine and a justification for its infringement affronts the most basic realities of the law and the markets it propels. As a matter of markets, IA’s one-to-one conflation of print and ebooks is fundamentally flawed. Digital books are inherently different from physical books. They can fly around the world in a second; they do not degrade over time as physical books do; and they require devices to read them. For these reasons, the Publishers have established independent and distinct distribution models for ebooks, including a market for lending ebooks through libraries, which are governed by different terms and expectations than print books. IA’s end-run around these differences and restrictions is aggressive and unlawful. In short, all of the reasons why IA has scanned print books to create digital files are the very same reasons why authors and publishers provide digital books under different terms than print books — as they are entitled to do under the Copyright Act.”
At bottom, CDL is based on the false premise that a print book and a digital book share the same qualities. But, as outlined above, they are fundamentally different mediums, and they exist as distinct economic markets. As the Copyright Office phrased it in a key report, “Time, space, effort and cost no longer act as barriers to the movement of [digital] copies, since digital copies can be transmitted nearly instantaneously anywhere in the world with minimal effort and negligible cost.” Digital Millennium Copyright Act (DMCA) Section 104 Report: Before the Subcommittee on Court, the Internet and Intellectual Prop., 107th Cong. (Aug. 2001) at p. 82, available at https://www.copyright.gov/reports/studies/dmca/sec-104-report-vol-1.pdf.
In a feigned act of magnanimity, IA assured authors that it would abide by a notice and takedown system. But this turns copyright law on its head. Copyright owners have the power to decide in advance how their exclusive rights will be exercised. Copyright is not an “opt-out” system whereby infringers can distribute copyrighted works for free, with impunity, until they are told to stop. The Copyright Act does not and never has put the burden on authors and publishers to police the unlawful actions of direct infringers, which in the case of the IA not only copies, uploads, and distributes infringing files, but asserts conditions and procedures for agreeing to stop the infringement.”
