The National Emergency Library is Dead and Controlled Digital Lending May be Next

The National Emergency Library is Dead and Controlled Digital Lending May be Next

Tuesday was supposed to be the last day of the National Emergency Library’s operation. But after claims of copyright infringement filed by the publishers Hachette, HarperCollins, Penguin Random House, and Wiley, the Internet Archive shut down its National Emergency Library two weeks earlier than expected:

We moved up our schedule because, last Monday [June 1st], four commercial publishers chose to sue Internet Archive during a global pandemic.  However, this lawsuit is not just about the temporary National Emergency Library. The complaint attacks the concept of any library owning and lending digital books, challenging the very idea of what a library is in the digital world. This lawsuit stands in contrast to some academic publishers who initially expressed concerns about the NEL, but ultimately decided to work with us to provide access to people cut off from their physical schools and libraries. We hope that similar cooperation is possible here, and the publishers call off their costly assault.

This is a shame, for two reasons. First, the NEL was a valuable resource for book lovers of all stripes. Testimonials on the Internet Archive’s blog showed support, and various nonprofits including the Scholarly Publishing and Academic Resources Coalition (SPARC) and the Association of Research Libraries (ARL) have offered their support for the Internet Archive in light of this litigation.

But the far greater concern is the fact that it’s not just the NEL that’s at risk–the Open Library and the concept of controlled digital lending (CDL) are  on trial. 

We have discussed why the NEL was nothing to fear in the past, and, as a watered-down form of the NEL, the Open Library is even less concerning. Now that the waitlists are back, it functions more like a traditional library, maintaining its traditional one-to-one own-to-loan ratio. The complaint challenges the claim that partner libraries “have the wherewithal to faithfully and consistently remove a book from circulation each time it is borrowed on the Website, and put it back on the shelf when the Website version is checked back in” and duplicate copies in IA’s own archive have been donated elsewhere, but there’s no hard evidence that the own-to-loan ratio is systematically violated for the Open Library.

There’s a lot to unpack in this complaint, but I’d like to focus on two main points made by the publishers: that the Open Library isn’t a library, and that this action upsets the fragile publishing ecosystem.

While the scale of the Open Library is larger than that of a traditional one, there’s no clear reason why it shouldn’t count as a library. The creation of an exemption for libraries in Section 108 of the Copyright Act “did not contemplate mass digitization,” but there are a great many things 40-year old laws did not contemplate. This is, at best, an argument for changing the law, but it has no bearing on whether or not the Open Library is a library. 

The scale of the Open Library is larger than any other library, but this is a difference of degree and not kind. Most libraries we think of are publicly funded institutions which cater to the communities in which they reside, but this is not an essential quality of a library. If I were to scour every used book store and yard sale in the country, put them on shelves, create my own internal library card system, and lend books out like a library, I would be running a library. Free lending and fixed own-to-loan ratio are the essential qualities of a library. The Open Library merely brings this concept into the digital age.

The complaint includes a discussion of IA’s ability to call itself an “accredited library,” but at the end of the day this point is semantic. This rigid definition of a library may help plaintiffs, to be sure, but it’s representative of a Luddite attitude which holds back progress. When plaintiffs claim “IA’s massive book digitization business has no new purpose that is fundamentally different than that of the Publishers: both distribute entire books for reading,” they also describe the business model of libraries. 

The second point, that the Open Library harms the publishing industry, is unsupported by any hard data. 

The complaint alleges that publishers “have been, and will continue to be, substantially and irreparably harmed in an amount not readily capable of determination.” And the argument that “IA devalues the book market [as c]onsumers begin to view works as cheap and become increasingly unappreciative of what it takes to produce them and unwilling to pay fair value for them” is pure moral panic. So too is the statement that “inferior quality scans affect the Publishers’ relationships with consumers.”

Libraries negotiate expensive contracts with publishers to distribute e-books, but they too interfere with the publishing “ecosystem” by offering books for free. Thankfully, publishers have no ability to control what I do with a physical book. I can keep it on my shelf or pass it along to Annie who gives it to Bob and so on. I can also give it to my local library and the availability of that book for free will probably stop at least a few people from purchasing it. 

Has the Open Library prevented the purchase of some books? Probably, but it has also likely prevented a few trips to the local library. Certainly, though, it has increased consumption of the books contained in it by those who wouldn’t have otherwise purchased them. A well-designed copyright law will guarantee a sufficient return on investment via exclusivity, but it wouldn’t entitle publishers to a cut of every benefit derived from reading a book.

Most–if not all–of the arguments made with respect to the Open Library’s harms to publishers’ bottom lines can be made just as forcefully against traditional libraries. As Chris Hayes said, “if libraries didn’t exist, we could never invent them now.” 

There will be further evidence produced through the course of litigation, but the battle lines have been clearly drawn. If the Open Library fails in court, then copyright law has failed as well.

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By |2020-07-02T07:47:47-07:00July 2nd, 2020|Blog, Intellectual Property|