Last week, oral arguments were heard in the summary judgement phase of the lawsuit brought by four commercial publishers against the Internet Archive (IA) for its National Emergency Library digital lending program. In prompt fashion, Federal Judge John Koeltl ruled on the motions for summary judgement only five days later. The resulting opinion was a stern rebuke of the Internet Archive and a significant victory for the four publishers.
Controlled digital lending (CDL) is really at the heart of this suit, more so than the focus on the emergency nature of the IA program. In fact, what is striking is that the case hardly mentioned that this was a temporary program in the depths of a lock down that ceased within months of being started. Publishers were not simply seeking to end a short-term program, but are seeking to limit the ability of libraries to engage in new approaches to existing rights that libraries have as established in copyright law.
This is a situation where bad facts bring about bad case law. The Internet Archive was certainly trying to extend the understanding of existing Fair Use rights under copyright law with the extension of its National Emergency Library, but the practice of controlled digital lending had been in place and practiced by institutions for several years prior to 2020, when the IA pushed out its service to anyone, anywhere, at any time. It is instructive that the publishing community waited until 2020 to act against IA, when the facts were most aligned to provide them a concrete and expansive win. The publishers did not pursue the many libraries that have used much more limited applications of CDL to serve their constituents.
The Internet Archive has already said this decision will be appealed. Regardless of the outcome of the ultimate decision, this was an inevitability as both sides viewed this as a case headed toward higher courts. The value of this stage was ideally to avoid the time and cost that would be involved in a trial. The questions at hand really are not about the facts of the case, which are generally speaking, agreed upon. Judge Koeltl has a reputation for prompt judgements in these types of cases and the turnaround of the judgement shouldn’t be read as reinforcing the obviousness of the decision, as some have done. The legal question is focused on the boundaries between what can be done with physical objects and the circulation of those digital versions. IA was seeking to extend the boundaries of Fair Use exemptions in copyirght in an increasingly digital world. For the moment, those boundaries will remain entrenched, perhaps even more deeply so.
It is worth noting that the ecosystem of digital content that has developed over the past fifty years is different from the marketplace of physical books in several key details, and publishers are anxious to protect this new expansion of IP territory. One key difference between the two markets for the same content — one physical and one digital — is that the world of print and physical items is governed by traditional common law understandings of ownership and transfer, including concepts of first sale and exhaustion. A library has the right to circulate a book, fundamentally, because it “owns” the thing and can do what it likes (up to a point, as proved by this ruling), which includes sharing it with library patrons. The world of digital content exists in an economic realm of licenses and contract law in which traditional notions of ownership do not necessarily apply. Publishers can limit the number of times a digital item can be shared, they can require annual payments to continue access, they can demand any terms they like. In the absence of agreement to these imposed terms, publishers can refuse to sell the content at any price to a segment of the market. The contract-law focused world of copyright for digital content is much more heavily weighted to the benefit of publishers and to the greatest extent possible, publishers would prefer it remain there. It is to every consumer’s detriment that we continue to move ever more in this direction in all manner of our digital lives. In this case, as is in so many aspects, the law is woefully inadequate to address the modern digital ecosystem and how a significant portion of the public interact with content.
The implications of this ruling are potentially profound, and, given the strong lean in the publisher’s favor, they are potentially troubling for libraries and the rights of those who seek to engage with content in our evermore digital and digitized world if the decision stands through the forthcoming appeals. For the significant amount of content that exists in print form and for which there is no publisher-sanctioned digital version available, that content has become effectively walled off from the digital world until it passes into the public domain—essentially for longer than anyone reading this blog is alive. Those who live in close proximity to and have access to world-class institutions with sizable print collections can get access to much of this content. For the vast majority of library users, this will not be the case. Their access will be significantly curtailed, but to paraphrase the ruling, this public interest is secondary to the interests of publishers in exercising their monopoly. This issue is compounded by a significant amount of that content, which exists in the netherworld where contracts were negotiated before digital versions were even considered. The contracts for those works were not explicit in the grant of digital distribution rights, so the publisher withholds the content for fear of running afoul of their own rights to distribute a digital version.
What is most troubling in this decision is its lack of consideration of the fact that the Internet Archive is a library, and the existing rights extended therein, which is a core distinguishing feature of this case. Conducting circulation of content for library purposes to library patrons is one of the foundational aspects of any library. One could remove the “e” from “ebooks” and the same notional harms to publishers argued by the Plaintiffs in this case would still exist. People can and do argue that libraries harm publishers’ sales and profits, because as was quoted in the ruling “It is hard to compete with free”. Yet that is what libraries do, they acquire content and distribute it to patrons free of charge. And conceivably there exists a library patron that might have turned to a bookstore to purchase the item, resulting in this scenario to a lost sale for the publisher. Avoiding the question of what a library is and does as irrelevant in this case seems to me to entirely miss the point. Whether that reader is provisioned with a print book or a digital copy is a matter of form, not function, so long as the publisher is compensated for that sale, which in either case it has been. The Internet Archive is aggressively seeking to extend this argument and will push it up the Appeals Court ladder as far as they can to advance their aims. I am not certain, however, that the court system, as it is currently populated, will be receptive to the IA’s arguments.
It is certainly worth noting that there is disagreement within the library community about the validity of Internet Archive’s approach here. Not all libraries, probably not even a majority would go so far as IA has. While IA has its supporters, there are many who view CDL and IA’s National Emergency Library with a suspicious eye, thinking it was pushing the boundaries of traditionally acceptable behavior too far. That suspicion was reinforced Friday evening.
The judge’s focus on Internet Archive’s CDL activities while disconnecting it from the practice of libraries, was strained. The extensive cases referenced in the decision almost entirely center around commercial distribution of copyrighted content and the commercial benefit to the organization in question (Redigi, Weissmann v. Freeman, and American Buddah) as justification that the infringement is commercial. In an environment when physical circulation was impossible, what was the library to do? Of course “Buy the book,” would be the response from the publisher and which millions of people did during the pandemic, with publishers’ income skyrocketing. The judge twisted himself into argumentative pretzels to define IA’s work as commercial. In a footnote (Page 16), the judge notes the potential defense under Section 108 of the Copyright Code, but that IA did not “justify its infringing acts under that section”.
Regardless of the outcome of this case on appeal, there remains a strong case there are legitimate uses of controlled digital lending that libraries are well within their rights to pursue. The best example of this is its application for accessibility purposes, when remediation usually involving digitization and secure distribution. This is a well-protected service that libraries can provide in alignment with Section 108 of the Copyright Act, with the Marrakesh Treaty, and as supported by case law, specifically, both in Sony v. Universal City Studios and Authors Guild v. HathiTrust. The decision last Friday also highlighted accessibility as a permissible application of library scanning and CDL. Other applications, such as for special collection materials, likely will remain within the purview of libraries, but these will be edge-case applications. The ruling even went so far as to acknowledge that not all of the actions of Internet Archive resulting from their digitization, such as indexing or display of snippets, are infringing activities and that therefore all of the digital scans might not need to be destroyed.
Another unintended consequence of this ruling will be the costs of interlibrary loan will remain unnecessarily and exceedingly high, even though the technology exists to reduce these costs and to do so in a secure and serviceable way. This ruling will scare most institutions off exploring ways to improve that practice through controlled digital lending.
The cost of ebook licenses in the library community will increase as a result of this decision as it affirms the publisher’s position that the domain of digital content is entirely in the hands of publishers and that they have nearly unlimited control over that ecosystem when it applies to human consumption of the content. If you’re an author considering a book contract with a publisher, you should reflect on this and demand to see the benefits of those increased license fees. Publishers claim that they are engaged in this fight for the benefit of the authors. If that is truly the case, they then should welcome the opportunity to pass these benefits onto the authors.
This ruling inherently narrows fair use and relegates library use to either the aggressively controlled digital subscription ecosystem, a very narrowly constrained use case set, or the domain of the purely physical. The decision reinforces the notion that digital items should only be held in the world of licensing where ownership rights remain solely in the control of the copyright owner because digital objects are not sold. By emphasizing the distinctions between the physical and digital (even while simultaneously arguing that they are functionally equivalent), this ruling forces us further into a world where we will have to pay repeatedly for the same thing again and again because we rarely actually own anything digital, even if we think we do.
In full disclosure, NISO is advancing a project to create an Interoperable System for Controlled Digital Lending with support from the Andrew W. Mellon Foundation. The project is focused on the practical workflow issues around how CDL is implemented in a library. The developing recommended practice will explore issues such as content sequestration, access control, and workflow for provision of CDL. This project is explicitly NOT focused on the rights issues, the validity of, or selection process around what materials an organization might include in a controlled digital lending service. Regardless of the outcome of this case, there are circumstances where the process of CDL could be implemented, such as for special collections, or accessibility provision, or course materials, where limited duplication and circulation of content is explicitly allowed under copyright law and CDL processes might support that circulation. Because of this case, however, I expect most institutions will be much more circumspect in their application of this technological approach.