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.’”