The Internet Archive Lawsuit

For those who aren’t aware, there is a lawsuit brought by four book publishers against the Internet Archive over their “National Emergency Library” initiative, which ran for about 3 months in 2020. During that time, the IA allowed unlimited lending of the books they had digitized. The updated program, which is still in effect, allows one person at a time to “check out” books, copies of which are supposed to be held in reserve by partner libraries.

The initial judgement was handed down recently, and it was not in favor of the IA. The judge ruled that the programs did not fall under fair use protections, and the IA would need permission from publishers to make such programs legal.

People Have Opinions About This

Author Chuck Wendig wrote a post about it—apparently he got hit by one of those social media firestorms that just keeps flaring up periodically—and says that he opposes the lawsuit. Meanwhile, Nathan Bransford (author, former agent and current freelance editor) fully supports the lawsuit, and links a Twitter thread by Nate Hoffelder explaining why the IA’s programs are bad for authors.

There are a couple reasons each camp has to support the publishers or the Internet Archive. The supporters remind us that at the beginning of the pandemic, many library systems shut down their physical buildings, and the “National Emergency Library” program was only active for a few months to help people who otherwise would have gone to those libraries. The current program is designed to limit the copies lent out in a way similar to existing libraries, so it’s less problematic. And, of course, the handful of very extreme “all-information-must-be-free” people are shouting the things they always shout, namely that most copyright and intellectual property law is bad for the human race and should be abolished.

In the opposite corner, the arguments are almost exclusively for authors’ rights. The IA ran a program that did nothing to compensate the authors of the books lent out, and was therefore pure enablement of piracy. Even the more restrictive program, while supposedly reserving library copies for each copy lent out, doesn’t have stringent controls and isn’t working with the publishers. (It’s worth noting that libraries do pay for books, and authors get a cut of that. There are systems for this that have been worked out over the years and strike a pretty good balance between compensating creators and making books available to a lot more people.)

Of Course, There Are Caveats

I do not see many people arguing in favor of the big publishers, which is telling. The truth is that authors and consumers both often feel like they’re being abused by the remaining handful of publishing conglomerates. Nobody is all that excited to go to bat for them, aside from the paid lawyers. But publishers are often the ones who end up fighting battles that benefit authors, for the simple reason that authors mostly get paid when publishers get paid.

Finally, the library systems of today have some pretty big flaws. While the advent of e-books has made it possible to borrow from libraries without getting off the couch, publishers also took the opportunity to make e-book lending far more advantageous to themselves, requiring additional payments after an amount of time or number of borrows. Plus, you have Amazon controlling a huge swath of e-books and outright refusing to lend, smaller presses being much harder to find at your local library, and a ton of people in the rural US (and certainly throughout the world) that do not have local library systems available to them.

My Thoughts

I’m somewhat inclined to forgive the IA for the brief run of the “National Emergency Library.” The beginning of the pandemic was a bad time, and nobody really knew how it was going to go. However, I have to acknowledge that I come at this argument from a place of privilege. I worried about a lot of things during the height of the pandemic, but I had a steady job.

The vast majority of authors don’t make enough money from their writing to live above the poverty line. That means they mostly aren’t wealthy and have to rely on other income streams, like spouses or other jobs. It also means that many authors work hard and struggle to eke every dime out of their work. Authors went through the pandemic just like readers, but the IA’s arguments don’t seem to worry about how authors might have been affected by the uncompensated lending of their work.

In terms of actual law, it seems pretty likely that the IA will lose their appeals. To win, they would need to carve out some new territory under fair use, and this doesn’t seem like the kind of judicial climate (especially if it gets to the Supreme Court level) where that is likely to happen. I like a lot of other things the IA does, and I hope this doesn’t hurt them too badly.

While I feel strongly for fellow authors, I don’t have much sympathy for the big publishers. They’ve made e-book lending worse than it could be, in misguided attempts to crank up profits. This would be a great opportunity to reevaluate and improve the relationships between publishers and libraries.

E-book lending theoretically solves a lot of the problems of locality that physical libraries have. It would be great if libraries had a little more legal authority to force reasonable deals with publishers for lending (and maybe even prevent companies like Amazon from locking out lenders altogether).

If we’ve learned anything from the digitization of movies and music, it’s that you can’t eradicate piracy. From Napster to Kazaa to BitTorrent, fighting pirates is like playing whack-a-mole. Some people are determined not to pay, and digital goods are just too easy to copy. The way to fight back is to make your legally-sold digital product as cheap, easy-to-use, and high-quality as possible.

Author: Samuel Johnston

Professional software developer, unprofessional writer, and generally interested in almost everything.

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