The CDL Lawsuit and the Future of Libraries

It’s been over two years since a group of large book publishers sued the Internet Archive over our lending programs. After an expensive and lengthy discovery phase, arguments have now been fully briefed in the district court. What might we learn from the proceedings so far about how publishers see the future of libraries?

The first thing we might learn is that the publishers want controlled digital lending declared illegal. At the time the lawsuit against us was filed, much of the commentary and analysis suggested that the case was really about the National Emergency Library–our emergency pandemic lending program. But while the NEL is certainly a part of the lawsuit, it did not take center stage in the briefing. In the publisher’s request for summary judgment, for example, only a few short paragraphs–out of about forty pages of argument–were devoted to the NEL. Of all the submissions, about 99% have concerned CDL. So it seems clear that the publishers view this lawsuit as a referendum on CDL, which they claim will cause “catastrophic harm” to the publishing industry.

A second thing this lawsuit has demonstrated is that publishers will continue to sue libraries over digital practices that were long considered fair uses in the physical world–even if they are done on a non-profit basis with no measurable economic harm. In the case against us, the publishers argue that digital lending harms markets they claim to own–and that it therefore is not a fair use under copyright law–under “the common sense economic principle that users are drawn to free goods as a substitute for paid goods.” Put another way, in the digital realm, every non-fee-paying library practice harms the publishers’ economic interests as a matter of principle–regardless of libraries’ historic practices and their previously-accepted roles, let alone what tangible economic evidence shows. In the digital world, where publishers have newfound abilities to surveil and control libraries and their patrons, the publishers argue that the economic opportunities these abilities open to them trump longstanding library practices and the public interest. Thus, they sued over digital course reserves, and are now suing over digital lending, notwithstanding a “thriving” and profitable industry. What library practice will they challenge next?

For many of us, the internet promised a world where libraries and their patrons would have more and better access to high quality information. For these publishers, it’s simply an opportunity to charge more while providing less. In the CDL lawsuit, they have admitted that of the millions of books we have digitized, they themselves have only made about 33,000 available to libraries; only about 1% of what we have done, and only under restrictive and expensive license agreements. This is, they claim, the essence of their copyright rights: the ability to restrict access to information as they see fit, to further their theoretical economic interests, without regard to libraries traditional functions and the greater public good. 

The good news is that many in the library community and beyond–including authors, small publishers, and patrons themselves–are seeing with clear eyes what is truly at stake. And they are seeing that, unfortunately, libraries and their supporters cannot just sit idly by–they will have to fight back. Indeed, that work has long since begun. In an extraordinary show of support–and recognition of what’s at stake–groups of librarians, scholars, and many others submitted friend of the court briefs in the publishers’ lawsuit against us. In these briefs, they demonstrated (among other things) the importance of libraries in the digital world. As the brief of Kenneth Crews, Kevin Smith, and the Harvard Law School Cyberlaw Clinic explained:

To remain relevant and to continue to democratize information access, libraries must meet patrons where they are; in the present day, that means the Internet. Libraries have nurtured our democracy from its inception and have changed alongside our society–evolving from private subscription models serving only the elite to free institutions that enrich citizens without regard to race, creed, gender, or socioeconomic status. As a cornerstone of democracies, libraries will always be the site of cultural struggle and ‘a crucible for a society that is constantly  moving toward a more perfect union.’”

5 thoughts on “The CDL Lawsuit and the Future of Libraries

  1. proeteus

    Q. What library practice will they challenge next?

    A. Change the primary function of a library from a place to store and lend physical books to other functions? For example, as a place for people to access technology, or as a place for parents to bring their children to play.
    Has this already happened to your local library?
    Have you noticed physical books disappearing from your library?
    Have you noticed that a whole floor of books at your local library was removed?
    Will they end the existence of physical libraries by first changing their function?
    Will they end the existence of physical books because “technology made them obsolete”?
    Will you be outlawed if you possess an e-book without authorization?
    Will you be outlawed if you possess a physical book?
    Will you be outlawed if you creates a physical book?
    Will you be expected to create all your digital content “in the cloud”?
    Will you be outlawed if you do not create your digital content “in the cloud”?
    Did the stories in physical books warn us that this could happen in our future?
    What did the heroes do in those stories?
    Will you do something similar?
    Will you do something different?
    Will you do nothing?
    Are you also physically disabled and is where you find and read the books that are missing at your local library?

  2. Ken Fisher

    A second thing this lawsuit has demonstrated is that publishers will continue to sue libraries over digital practices that were long considered fair uses in the physical world–even if they are done on a non-profit basis with no measurable economic harm.

    Is it a fair assessment of the publishers to say that they are very much of an “all or nothing” mindset?

    The current situation with publishers reminds me a great deal of the kerfuffle surrounding music sales in the late 1990s. It seemed to me at the time that the recording industry was determined to cling to outdated business models that had been supplanted by advances in technology.

    Now it appears that the publishing industry is determined to be just as inflexible when it comes to eBooks by treating them as software rather than books. I am not sure the argument that eBook licenses should work like software licenses as written by credit card firms is a compelling one.

    I *am* sure that, by confining themselves to an “our way or else” mindset, the publishers risk potentially leaving money on the table in much the same way the music industry did in the 1990s. When the music industry started to take the view that consumers were adversaries rather than customers, both their image and their sales took a hit.

    Could the publishing industry now be making the same mistake with libraries and readers?

  3. Library Lover

    The publishers seem to be relying on the notice in books. electronic copies of any part of the book may be made without permission. PERIOD. So technically the publishers may be legally on sound footing. But practically speaking a library making an electronic copy of a book owned by a library and lending it does not seem to be a violation of the spirit of copyright laws. Even with physical books, the publisher can provide notice that the book may not be lent by a library ! The politicians have to step in and stop the nonsense. Libraries can lend a physical book or make electronic version available as if it was a physical book regardless of any publisher putting in notices not to do so.

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