#hachette v. internet archive

[burningvelvet]

if the significance of the internet archive being threatened has been lost on anyone, maybe these quick comparisons will put it into perspective…

Banning the Internet Archive would be the equivalent of burning the Library of Alexandria hundreds of times…

[Image Descriptions in alt text]

[sealpup9]

Internet Archive Live Hearing happens tomorrow: March 20, 2023

Here's a link to the Internet Archive's page, describing how you can participate and listen to oral arguments on Monday March 20th at 1pm ET

You may know the Internet Archive because of the Wayback Machine!!

The court case Hachette v Internet Archive is being brought to court and threatens to tear down the Internet Archive as we know it.

"The Internet Archive is a nonprofit digital library, preserving and providing access to cultural artifacts of all kinds in electronic form. CDL allows people to check out digital copies of books for two weeks or less, and only permits patrons to check out as many copies as the Archive and its partner libraries physically own. That means that if the Archive and its partner libraries have only one copy of a book, then only one patron can borrow it at a time, just like any other library. Through CDL, the Internet Archive is helping to foster research and learning by helping its patrons access books and by keeping books in circulation when their publishers have lost interest in them."

This is so important because not only does the Internet Archive provide books that are long out of circulation and copies for people to borrow, they are also used as sources for things like Wikipedia articles! Imagine if suddenly, no one could access sources that someone cites for their information! Having access to information digitally today is a very important thing, and with all of the paywalls people face nowadays for news, imagine if you suddenly had to pay for access to any books. Websites like Amazon already are attempting to replace any sort of ebook rentals with paid services, when we have the right to borrow books online just as we do physically. The Internet Archive is extremely important and one of our rights- access to information- is actively being fought against.

REMEMBER: This will not JUST affect the internet archive. This could change how libraries in general work, and could threaten public access to information. Imagine how many youtube video essay sources would be null and void, imagine just trying to research an obscure topic at 3am-- If all of that was behind a paywall, only those with money would be able to access them! The harder it is for libraries to share books and archive information, the more the public suffers!

Please show your support! Read more about the case here: https://www.eff.org/cases/hachette-v-internet-archive

https://www.battleforlibraries.com/

I'm not sure how quick Tumblr will work on approving this blazed post but if the day/time has passed, please know that you can actively look into more information on this case and other info on the Internet Archive Blogs. You can also add your name to a list of supporters of Battle for Libraries Here.

Let's work together on making sure we have access to information! In this digital age, we deserve to access just as much online as we do offline!

[protoslacker]

Don’t let libraries die. As the future goes digital, major publishers are suing to cut off libraries’ defense of digital books from censorship. It’s time to fight back.

[chaoskirin]

Watching the internet go after "major publishing houses" because they won the case against the Internet Archive is so upsetting.

I don't think people realize this, but they don't pay their authors enough to survive. Even if you're published through one of the big four, you're generally not going to earn enough to live, unless you're pumping out 6-10 books a year.

There seems to be this pervading belief that authors published with major publishers earn a LOT OF MONEY, IE that an advance might be in the range of six figures. Which leads people to the conclusion that piracy hurts no one.

In reality, your advance on a book might be in the range of $6K if you're a new author, and doesn't really go past the $20K range for established authors, unless you're really famous. They HAVE the money to pay authors. They just... don't.

I know $20K seems like a lot, but an adult living on their own needs a whole lot more to live, especially because authors in the US need to purchase health insurance. They don't get it through work.

In 2023, the living wage for a family is, at the very minimum, $80,000.

So what happens when you boycott Penguin, or Harper Collins? They aren't going to give their CEOs less. They're going to give their authors less. Because to them, authors are disposable. There are always more people willing to sell their books, until they realize they can't make a living wage off being an author. Then they stop writing.

And the CEOs keep getting yearly raises.

I really, REALLY wish I could get through to people on this. Every time I try, I'm usually slammed with one of two arguments: 1. Piracy hurts no one. Or 2. I ought to get an actual job and stop treating a hobby like a job.

Which just baffles me, because y'all are out here consuming books, but you're literally despising the authors for trying to write full time and survive. It sucks. And it's gotten progressively worse. Not even 5 years ago, the prevailing opinion was that you Do Not Pirate Books.

Honestly, it's hard to care anymore with wave after wave of instructions on how to pirate books. It's barely worth the effort to write anymore, and the desire to put the work into creating a story, editing, and then searching for a publisher just isn't there.

And that's how a lot of queer and marginalized authors feel. By pirating books, you're losing the voices you want to read, while elevating the voices who are doing real harm.

I just think you all should know that and accept that before pirating. If you're okay with that, then I guess go ahead and do it. You'll definitely be satisfied in the short term, but just understand that queer voices are FINALLY getting their stories heard. Pirating is just going to erase all that progress.

That being said, if I ever earn out 6 figures, pirate my books with my blessing. But right now, here's a picture of my March royalties:

So please, don't pirate my books.

Also, despite what the comments say, this is NOT a slippery slope toward destroying fanworks archives. The Internet Archive was literally pirating books (not purchasing them, like libraries do) then scanning them and putting them up on the internet to borrow. If the IA purchased books from authors to scan, it would be considered a library, and authors would be happy.

Fanworks like fanfiction fall under derivative work, or parody. It's a totally different ballpark.

So many organizations reached out to the Internet Archive in an attempt to come to a license agreement, and the IA did not respond.

I really hope people consider reblogging this post. My source is that I'm an author, and have been following this case very closely.

[celtiberian-idiot]

The internet archive under attack

I've come a bit late to the party but recently it found out that 'hachette book group, HarperCollins, Wiley, and Penguin Random House' all book publishing firms? (Is firm the adequate term, I'm not sure) are trying to sue the internet archive as in their eyes the internet archive is costing them millions of dollars.

I cannot express with word the rage in my insides at the moment. This is... something. Something I hate with all my being. The internet archive holds so much knowledge sometimes I make fun at myself for being a bit of a data hoarder, I don't like to delete files, I like to preserve iterations of the things I've made or I own. The internet archive holds so much, hounded of thousand of pdfs, from classics to less known, audiobooks, old films, music, tv programming, etc... I've seen old games archived but also people uploading their own custom games, their psp homebrew games, original games that aren't found anywhere else.

The internet archive also hosts the wayback machine, a way to record old webpages and their change through time. Do you want to see how the old internet was in a more direct medium than screenshots? This is the way to do it. And you don't even need to be interested in the early internet to make use of it, recently there was a post making fun of an AI made article that repeated the word "pebble" like 30 times. I was late to the party and the article was edited, however someone archived that page, someone was able to save that instance in time and allowed everyone to revisit it whenever they liked.

I'm not very good at putting things into words, specially in the heat of the moment like right know when I've just learnt about the issue. But this is serious this is one step away from suing public libraries. I hate it here. I want to burn something. The internet archive is important and there should be more initiatives like it. The archival of the internet should not be at risk so easily...

This people have put in better word than I can at the moment.

[tehriz]

I’ve seen a lot of misinformation going around here about this lawsuit and would strongly encourage folks to read up on what was actually being done and what the actual objections of publishers and authors were. This is a good writeup with a few different perspectives on the ruling last week.

(I am a huge supporter of a lot of the Internet Archive’s work and like a few of the folks here am just flabbergasted this was the hill they chose to die on and jeopardize everything else they do. I also would encourage folks to understand that authors, many of whom cannot afford to write full time and are being paid on increasingly small and fragmented advances, directly lose income and often future contracts when their books are not bought or licensed normally, and don’t deserve to be treated like they’re corporate shills or anti-literacy or personally murdering digital archiving because they are opposed to this thing the IA did.)

[gynoidgearhead]

re: Internet Archive court case

So I feel the need to tell my followers about something important, but the post currently circulating about it has a ton of "how dare you", and I hate with the fury of a thousand suns the idea of passing shame on to my followers for falling for something I myself fell for.

(Using Tumblr should not feel unsafe. I don’t want this turning into Twitter.)

Here's my summary of the salient points:

The Internet Archive apparently committed actions that made them not equivalent to a legitimate library, including with regard to books. They were doing the digital equivalent of photocopying books and setting the copies on the shelves. In the most sophisticated iterations of this scheme, they were (figuratively) photocopying other libraries' books, passing them off as the originals, and lending them out.

The Internet Archive did library crimes, and that opened them up to being sued.

This might come as a shock to you if you, like me, hadn't tried borrowing a book from them since before they (apparently) stopped tracking copies altogether and got told "hey, all of the copies are lent out" and you went "oh, okay, that makes sense because library".

The way digital lending is currently handled is apparently pretty broken, such that even the legitimate-sounding version of this scheme (1 physical copy = 1 patron lending a digital copy) might not be viable (???); but that’s an entirely separate consideration from whether or not IA should be allowed to maintain the scheme that more obviously violates copyright.

You can take issue with the way the major publishers operate (in fact, please do), but book piracy hurts authors first and foremost. If books don't sell, authors don't get paid at all (i.e. maybe can't even pay for food) and definitely don't get paid to write sequels.

(Though I'm not really sure this logic should apply to books that are entirely out of circulation? Like, if a book is out of print, the publishing industry itself has decided that an author already cannot make any more money off of that book. It's not like they track every time a used copy of the book is bought and sold. This is another place where I felt bad about the idea of reblogging the original post uncritically.)

Personally, I wish the Internet Archive would focus most on the one truly unique and irreplaceable aspect of their institution -- the Wayback Machine. If that goes under, there isn't another like it waiting in the wings, and very likely the only copy of immeasurable amounts of information is lost forever.

[monkey-network]

I'm forever siding with Internet Archive but I know this is not the same spat as Viacom v Youtube because while I'm no copyright expert, archive sites won't exactly pass the transformative angle & it's harder justifying the non-profit angle with pre-established literature than fan works. Just saying I don't use Internet Archive for ebooks so this is not exactly my field of expertise, but fuck the publishers responsible for this anyways.

[wastelandslug]

hey so incase you havent heard

Internet Archive is getting banned

[macmanx]

Big Media’s lobbyists have been running a smear campaign trying to paint the Internet Archive as a greedy big tech operation bent on stealing books—which is totally absurd. If you’ve ever used the WayBack Machine, listened to their wonderful archives of live music, or checked out one of their 37 million texts, it’s time to speak up. On March 20, everyone is showing their support for the Internet Archive during oral arguments.

Here's how you can help:

The Internet Archive is our library, a massive collection of knowledge and culture accessible to anyone with an internet connection. Don't let greedy publishers burn down the next Library of Alexandria!

And if you're absolutely certain you don't use or need the Internet Archive, take a look at their projects first, you might be surprised. Those are all at risk too.

[sixty-silver-wishes]

For those who follow me for film or music content (which is like 90% of what I post lol), there are a lot of classic films and historical resources I have only been able to access on Internet Archive. I’m not sure what Hachette v. Internet Archive means for the future of the website and the countless accessible sources there, but as Internet Archive has lost the case and is going to appeal, I highly recommend making a donation to their website at http://archive.org if you can. Show your support for public accessible knowledge today!

[burningvelvet]

i’m so fucking sick of people (say, the people currently winning the lawsuit) claiming that the internet archive infringes their precious darling copyrights—if they want individual books taken down, why should the trial not only be about those?—why must they punish the entire catalogue? i use the archive primarily for old historical books, academic books, many books that are niche or 100+ years old which no one can buy anywhere, nearly no one would buy even if they could, and which the vast majority of real libraries do not even carry. i use the internet archive practically every single day for research and studying and it is my #1 resource by far. why do people value profits over knowledge? why do people value profits over accessibility? this is a library and the publishing companies are mad because it allows people to read their works for free. IT’S A FUCKING LIBRARY! poor people deserve to read and access archives. poor people make up the majority of the human race. all this trial is accomplishing is making thousands of great books inaccessible to poor people because publishing companies want to save a few bucks. sure, you can borrow books from other libraries via interlibrary loaning, but doing so takes WEEKS due to shipping. the internet archive saves people an enormous amount of time and money. this is a major case of book burning being put into action and practically no one outside of academia gives a fuck or even knows about this issue because journalists know this story won’t sell well and thus aren’t bringing attention to it. i am disgusted and my hope for humanity is in the gutter.

[emma-dennehy-presents]

Starting my Star Wars Holocron Drive over again, after the kittens killed my HDD. I foresee a lot of YouTube screen capping and torrenting off of The Internet Archive in my future. Probably going to skip finding every little fan film this time and focus on the big hits and some of my favorite deep cuts. Its nice to see pretty much everything is still available and has seeds. A lot more of the old TV Spots like The Making of Star Wars (ABC 1977) got uploaded to Archive.org in the last few years. With Archives current legal troubles* I'm d/ling them as fast as I can. ORAL ARGUMENTS FOR Hachette v Internet Archive ARE BEING HELD THIS MONDAY (March 20), IN THE SOUTHERN DISTRICT OF NEW YORK! Heres a link to Archive.org on how to help and another to Battle for Libraries an internet advocacy group involved in the fight.

[hapalopus]

Btw if you're pissed about the Hachette Book Group suing the Internet Archive, you can tell them how you feel. The least we can do is tell em we don't like what they're doing and that we'll take our business elsewhere (🏴‍☠️🏴‍☠️🏴‍☠️) if they actually manage to burn down the library:

HachetteUS / HarperCollins / HarperCollinsUK / penguinrandom / PenguinBooks / WileyGlobal / randomhouse / penguinusa / PenguinUKBooks / PenguinRandomCA / PenguinClassics / PenguinTeen / harperteen / harperbooks / HarperFiction / HarperPerennial / HarperCollinsCh / HarperChildrens / HarperAudio / Harper360 / Wiley_Chemistry / WileyHumanities / WileyHealth / WileyEconomics / WileyPolitics / WileyPsychology / WileyEcolEvol / WileyNeuro / wileyearthspace / WileyEngineer / wiley_finance

If you're unsure what to say, you can refer to this article: https://www.eff.org/cases/hachette-v-internet-archive

[themthouse]

The Internet Archive, Misinformation & the Problem of Digital Lending

I am in the embarrassing situation of having reblogged a post with misinformation. Specifically, the "Save the Internet Archive" post featuring the below image and its associated link to a website called "Battle for Libraries".

The post claims that the recent lawsuit the IA faced threatened all IA projects, including the Wayback Machine, which is not true. The link to a petition to "show support for the Internet Archive, libraries’ digital rights, and an open internet with uncensored access to knowledge" only has one citation, which is the internet archive's own blog.

After looking for more context, I found that even articles published from sources I trusted didn't seem to adequately cover the complexity of what is going on. Here's what I think someone who loves libraries but is hazy about copyright law and the digital lending world should know to understand what happened and why it matters. I am from the U.S., so the information below is specifically referring to laws protecting American public libraries. I am not a librarian, author or copyright lawyer. This is a guide to make it easier to follow the arguments of people more directly invested in this lawsuit, and the potential additional lawsuits to come.

Table of Contents:

First-Sale Doctrine & the Economics of E-books

Controlled Digital Lending (CDL)

The “National Emergency Library” & Hachette v. Internet Archive

Authors, Publishers & You

-- Authors: Ideology v. Practicality

-- Publishers: What Authors Are Paid

-- You: When Is Piracy Ethical?

First-Sale Doctrine & the Economics of E-Books

Libraries are digitizing. This is undisputed. As of 2019, 98% of public libraries provided Wi-Fi, 90% provided basic digital literacy programs, and most importantly for this conversation, 94% provided access to e-books and other digital materials. The problem is that for decades, the American public library system has operated on a bit of common law exhaustion applied to copyright known as first-sale doctrine, which states:

"An individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner."

With digital media, however, because there isn't a physical sale happening, first sale doctrine doesn't apply. This wasn't a huge problem back in the early 2010s when most libraries were starting to go digital because the price of a perpetual e-book license was only $14 -- about the price of single physical book. Starting in 2018, however, publishers started limiting how long a single e-book license would last. From Pew Charitable Trusts:

"Today, it is common for e-book licenses from major publishers to expire after two years or 26 borrows, and to cost between $60 and $80 per license, according to Michele Kimpton, the global senior director of the nonprofit library group LYRASIS... While consumers paid $12.99 for a digital version, the same book cost libraries roughly $52 for two years, and almost $520 for 20 years."

Publishers argue that because it's so easy to borrow a digital copy of a book from the library, offering libraries e-book licenses at the same price as individual consumers undermines an author's right to license and profit from the exclusive rights to their works. And they're not entirely wrong about e-book lending affecting e-book sales -- since 2014, e-book sales have decreased while digital library lending has only gone up. The problem, they say, is that e-book lending is simply too easy. Whereas before, e-book sales were competing with the less-convenient option of going to the library and checking out a physical copy, there is essentially no difference for the reader between buying or lending an e-book outside of its cost.

Which brings us to the librarians, authors and lawmakers of today, trying to find any solution they can to make digital media accessible, affordable and still profitable enough to make a livable income for the writers who create the books we read.

Further Reading:

1854. Copyright Infringement -- First Sale Doctrine

The surprising economics of digital lending

Librarians and Lawmakers Push for Greater Access to E-Books

Publishing and Library E-Lending: An Analysis of the Decade Before Covid-19

Controlled Digital Lending (CDL)

Controlled digital lending is a legal theory at the heart of the Internet Archive lawsuit that has been proposed as one solution to the economic issue with digital media lending. This quick fix is especially appealing to nonprofits like the IA that are not government, tax-funded programs. Where many other solutions, like a legally enforced max price on e-book licensure for public libraries, would not apply to the IA, CDL would essentially be manipulating copyright law itself as a way to avoid e-book licensure altogether and would apply to the IA as well as public libraries.

Essentially, proponents of CDL argue that through a combination of first-sale and fair use doctrine, it can be legal for libraries to digitize the physical copies of books they have legally paid for and loan those digital copies to one person at a time as if they were loaning the original physical copy.

It is worth noting that the first-sale doctrine protecting physical media lending at public libraries does not cover reproductions:

“The right to distribute ends, however, once the owner has sold that particular copy. See 17 U.S.C. § 109(a) & (c). Since the first sale doctrine never protects a defendant who makes unauthorized reproductions of a copyrighted work, the first sale doctrine cannot be a successful defense in cases that allege infringing reproduction.”

This is where fair use comes in, which allows some flexibility in copyright law for nonprofit educational and noncommercial uses. Because the IA and other online collections are nonprofit organizations, proponents of CDL argue that they are covered by fair use so long as their use of CDL follows very specific rules, such as:

A library must own a legal copy of the physical book, by purchase or gift.

The library must maintain an “owned to loaned” ratio, simultaneously lending no more copies than it legally owns.

The library must use technical measures to ensure that the digital file cannot be copied or redistributed.

While this model first earned its name in 2018, it has been practiced by a number of digital collections like The Internet Archive’s Open Library since as early as 2010. It is important to know that controlled digital lending has never been proven officially legal in court. It is a theoretical legal practice that has passed by mostly unchallenged until the Internet Archive lawsuit. This is partially due to the fact that before releasing their official CDL statement in 2018, the IA had been honoring Digital Millennium Copyright Act (DMCA) takedown requests of books in CDL circulation, which authors claim they are not always responding to or honoring anymore. The legality of CDL essentially depends on a judge's interpretation of current copyright law and whether they see the practice as an infringement, which would set a precedent for similar cases moving forward.

There are, however, U.S. court decisions that have rejected similar cases, like Capitol Records v. ReDigi, which argues that digital files (in this case, music files) cannot be resold without copyright holder’s permission on the grounds that digital files do not deteriorate in the same way that physical media does, implying that first sale doctrine doesn’t apply to digital media.

In 2019, the Authors Guild, a group of American authors who advocate for the rights of writers to earn a living wage and practice free speech, pointed out this court case in an article condemning CDL practices. They also argued that not only does CDL undermine e-book licensure (and therefore author profits off e-book sales), but it also would effectively shut down the e-book market for older books (the market for copyrighted books that were published before e-books became popular and are only being digitized and sold now). The National Writers Union has also released an “Appeal from the victims of Controlled Digital Lending (CDL),” that cites many of the same complaints.

Further Reading:

U.S. Copyright Office Fair Use Index

Position Statement on Controlled Digital Lending by Libraries

FAQ on Controlled Digital Lending [Released by NYU Law’s Engelberg Center on Innovation Law & Policy]

Controlled Digital Lending Is Neither Controlled nor Legal

Appeal from the victims of Controlled Digital Lending (CDL)

FAQ on Controlled Digital Lending [Released by the National Writers Union]

 The "National Emergency Library" & Hachette v. Internet Archive

While the Internet Archive is known as the creator and host of the Wayback Machine and many other internet and digital media preservation projects, the IA collection in question in Hachette v. Internet Archive is their Open Library. The Open Library has been digitizing books since as early as 2005, and in early 2011, began to include and distribute copyrighted books through Controlled Digital Lending (CDL). In total, the IA includes 3.6 million copyrighted books and continues to scan over 4,000 books a day.

During the early days of the pandemic, from March 24, 2020, to June 16, 2020, specifically, the Internet Archive offered their National Emergency Library, which did away with the waitlist limitations on their pre-existing Open Library. Instead of following the strict rules laid out in the Position Statement on Controlled Digital Lending, which mandates an equal “owned to loaned” ratio, the IA allowed multiple readers to access the same digitized book at once. This, they said, was a direct emergency response to the worldwide pandemic that cut off people’s access to physical libraries.

In response, on June 1, 2020, Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House filed a lawsuit against the IA over copyright infringement. Out of their collective 33,000 copyrighted titles available on Open Library, the publishers’ lawsuit focused on 127 books specifically (known in the legal documentation as the “Works in Suit”). After two years of argument, on March 24, 2023, Judge John George Koeltl ruled in favor of the publishers.

The IA’s fair use defense was found to be insufficient as the scanning and distribution of books was not found to be transformative in any way, as opposed to other copyright lawsuits that ruled in favor of digitizing books for “utility-expanding” purposes, such as Authors Guild, Inc. v. HathiTrust. Furthermore, it was found that even prior to the National Emergency Library, the Open Library frequently failed to maintain the “owned to loaned” ratio by not sufficiently monitoring the circulation of books it borrows from partner libraries. Finally, despite being a nonprofit organization overall, the IA was found to profit off of the distribution of the copyrighted books, specifically through a Better World Books link that shares part of every sale made through that specific link with the IA.

It worth noting that this ruling specifies that “even full enforcement of a one-to-one owned-to-loaned ratio, however, would not excuse IA’s reproduction of the Works in Suit.” This may set precedent for future copyright cases that attempt to claim copyright exemption through the practice of controlled digital lending. It is unclear whether this ruling is limited to the National Emergency Library specifically, or if it will affect the Open Library and other collections that practice CDL moving forward.

Further Reading:

Full History of Hachette Book Group, Inc. v. Internet Archive [Released by the Free Law Project]

Hachette v. Internet Archive ruling

Internet Archive Loses Lawsuit Over E-Book Copyright Infringement

The Fight Continues [Released by The Internet Archive]

Authors Guild Celebrates Resounding Win in Internet Archive Infringement Lawsuit [Released by The Authors Guild]

Relevant Court Cases:

Authors Guild, Inc. v. Google, Inc.

Authors Guild, Inc. v. HathiTrust

Capitol Records v. ReDigi

 Authors, Publishers & You

This is where I’m going to be a little more subjective, because each person’s interpretation of events as I have seen has depended largely on their characterization and experience with the parties involved. Regardless of my own ideology regarding accessibility of information, the court ruling seems to be completely in line with current copyright law and precedent. Ironically, it seems that if the Internet Archive had not abandoned the strict rules regarding controlled digital lending for the National Emergency Library, and if they had been more diligent with upholding those rules with partner library loans prior to the NEL, they may have had a better case for controlled digital lending in the future. As is, I agree with other commentators that say any appeal the IA makes after this point is more likely to damage future digital lending practices than it is to save the IA’s current collection of copyrighted works in the Open Library. Most importantly, it seems disingenuous, and even dangerously inaccurate, to say that this ruling hurts authors, as the IA claimed in their response.

The IA argues that because of the current digital lending and sales landscape, the only way authors can make their books accessible digitally is through unfair licensing models, and that online collections like the IA’s Open Library offer authors freedom to have their books read. But this argument doesn’t acknowledge that many authors haven’t consented to having their works shared in this way, and some have even asked directly for their work to be removed, without that request being honored.

The problem is that both sides of this argument about the IA lawsuit claim to speak for authors as a group when the truth isn’t that simple.

Authors: Ideology v. Practicality

Those approaching the case from an ideological point of view, including many of the authors who signed Fight for the Future’s Open Letter Defending Libraries’ Rights in a Digital Age, tend to either have a history of sharing their works freely prior to the lawsuit (ex: Hanif Abdurraqib, who had published a free audio version of his book Go Ahead in The Rain on Spotify before Spotify began charging for audiobooks separately from their music subscriptions) or have alternative incomes related to their writing that don’t stem directly from book sales (ex: Neil Gaiman, who famously works with multiple mediums and adaptations of his writing).

In these cases, the IA lawsuit is framed as an ideological battle over the IA’s intention when releasing the National Emergency Library.

Many other authors, including a large number of smaller names and writers early in their careers, take a much more practical approach to the lawsuit, focused on defending their ability to monetarily profit off their works. This is by no means a reflection of their own ideology surrounding who has the right to information and whether libraries are worth protecting. Instead, it is a response to the fact that these authors love writing, and they simply would not be able to afford to continue writing in a world where they do not have the power to stop digital collections from distributing their copyrighted work without their consent. These include the authors, illustrators and book makes working with the Author’s Guild to submit their amicus brief in  Hachette v. Internet Archive.

These authors claim that controlled digital lending practices cause significant harm to their incomes in the following ways:

CDL undermines e-book licensing and sales markets, as most consumers would choose a free e-book over paying for their own copy.

CDL devalues copyright, meaning authors have less bargaining power in future contract negotiations.

CDL undermines authors ability to republish, whether as a reprint or e-book, out of print books once their publisher has ceased production. This includes self-publishing after the rights to their work have been returned to them.

CDL removes the income from public lending rights (PLR) that authors receive from libraries outside of the U.S. which operate on different lending and copyright standards.

The amicus brief provides first-person anecdotes from authors, including Bruce Coville of The Unicorn Chronicles, about how the rights to backlisted books, or books without an immediately obvious market, make up a huge portion of their annual salary. Jacqueline Diamond cites reissues of out-of-print novels as what kept her afloat during her breast cancer treatment.

It is worth noting that according to the Author’s Guild, some authors who originally signed Fight for the Future’s open letter defending the Internet Archive have even retracted their support after learning more about the specific lawsuit, including Daniel Handler, who writes under the pseudonym Lemony Snicket. The confusion stems from the use of the term “library” by both the Internet Archive and Fight for the Future. While authors overwhelmingly support public libraries, online collections like the Internet Archive don’t always fit the same role or abide by the same regulations as tax-funded public libraries. Sandra Cisneros, author of The House on Mango Street, has written the following:

“To this day, I am angry that Internet Archive tells the world that it is a library and that, by bootlegging my books, it is simply doing what libraries have always done. Real libraries do not do what Internet Archive does. The libraries that raised me paid for their books, they never stole them.”

Further Reading:

Amicus Brief [Submitted by the Author’s Guild]

Fight for the Future’s Open Letter Defending Libraries’ Rights in a Digital Age

Joint Statement in Response to Fight for the Future’s Letter Falsely Claiming that the Lawsuit Against Internet Archive’s Open Library Harms Public Libraries [Published by the Author’s Guild]

Copyright: American Publishers File for Summary Judgment Against the Internet Archive

 Publishers: What Authors Are Paid

Some of the commentators I’ve seen are disgruntled specifically with the publishers suing the Internet Archive, and I will say that many of these complaints are valid. The four publishing companies behind the lawsuits (Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House) are not known for the stellar treatment of their authors and employees. With the HarperCollins Publishers strike ending only a month before the IA lawsuit ruling, many readers are poised to support any entity at odds with one or more of the “Big Five” publishers. In this particular case, however, the power wielded by these publishing companies was used in defense of author’s rights to their works, for which The Authors Guild and other similar creator groups have expressed gratitude.

When it comes to finding solutions to the digital lending problem in general, it is important to understand what and how authors are paid for digital copies of their work. Jane Friedman has created the graphic below displaying the industry standards for the Big Five publishers. You can read more about agency and wholesome models here.

As you can see, authors and publishers alike benefit from e-book library licensure when compared to individual e-book sales, especially when you consider the time limits on library licensures. But advocates of this licensure model argue that the high prices for e-book licensure are designed to make up for the lost sales in e-books. While library goers buy more books than book buyers who don’t visit the library, the copies they buy typically vary by format. For example, a reader may borrow an audiobook from the library, decide they like it, and purchase a physical copy for their collection. While readers may buy a physical copy of a book after reading a physical library copy, they are unlikely to buy a digital copy after readying a digital library copy, making e-book lending a replacement for e-book buying in ways that physical lending doesn’t fully replace physical book purchases.

What ISN’T accounted for in this graphic is self-publication and what is known as a right of reversion. Depending on the wording of their contract, an author can request their publication rights be returned to them if the work in question is out of print and no longer being published. The publisher can then either return the work to “in print” status or return the rights to the author, who can then self-publish the work. In these cases, the 5-15% profit they would have made off their traditionally published book becomes a 35-70% profit as a self-published book. This is why authors are particularly frustrated with the IA’s argument that it is perfectly legal and ethical to release digital copies of books that are no longer in print. Those out-of-print works are where many authors earn their most reliable, long-term income, and they provide the largest opportunity for the authors to take control of their own works again and make fairer wages through self-publication.

The most obvious answer to this is that if authors are being the ones hit hardest by library and digital lending, then it is the publishers that need to treat their authors with better contracts. The fact that some authors are only earning 5% of profits on hardcover copies of their books (whether those are being sold to libraries or individuals) is eye opening. Alas, like the “we shouldn’t have to tip waiters” argument, this is much easier said than done.

Further Reading:

What Is the Agency Model for E-books? Your Burning Questions Answered

What Do Authors Earn from Digital Lending at Libraries?

 You: When Is Piracy Ethical?

There are number of contributing factors to Tumblr’s enthusiasm for pirating. We are heavily invested in the media we consume, and it is easy to interpret (sometimes accurately) copyright as a weapon used by publishers and distant descendants of long-dead authors to restrict creativity and representation in adaptations of beloved texts. There are also legitimate barriers that keep us from legally obtaining media, whether that is the physical or digital inaccessibility of our local libraries and library websites, financial concerns, or censorship on an institutional or familial level. In fact, studies have found that 41% of book pirates also buy books, implying that a lot of illegal piracy is an attempt at format shifting (ripping CDs onto your computer to access them as MP3 files, for example, or downloading a digital copy of a book you already own in order to use the search feature).

The interesting thing is that copyright law in the U.S. has a specific loophole to allow for legal format shifting for accessibility purposes. This is due to the Chafee Amendment (17 U.S.C. § 121), passed in 1996, which focused on making published print material more available to people with disabilities that interfere with their ability to read print books, such as blindness, severe dyslexia and any physical disability that makes holding and manipulating a print book prohibitively difficult. In practice, this means nonprofits and government agencies in the U.S. are allowed to create and distribute braille, audio and digital versions of copyrighted books to eligible people without waiting for permission from the copyright holder. While this originally only applied to “nondramatic literary works,” updates to the regulations have been made as recently as 2021 to include printed work of any genre and to expand the ways “print-disabled” readers can be certified. Programs like Bookshare, Learning Ally, and the National Library Service for the Blind and Print-Disabled no longer require certification from a medical doctor to create an account. The Internet Archive also uses the Chafee Amendment to break their Controlled Digital Lending regulations for users with print disabilities. While applications of the Chafee Amendment are still heavily regulated, it is worth noting that even U.S. copyright law acknowledges the ways copyright contributes to making information inaccessible to a large amount of people.

Accessibility is not the only argument when discussing the morality of pirating. For some people, appreciation for piracy and shadow libraries comes from a background in archival work and an awareness how much of our historical archives today wouldn’t exist without pirated copies of media being made decades or even a century ago. But we have to be more careful about the way we talk about piracy. Though piracy is often talked about as a victimless crime, this is not always the case, and each one of us has a responsibility to critically think about our place in the media market and determine our own standards for when piracy is ethical. In some cases, such as the recent conversation surrounding the Harry Potter game, some people may even decide that pirating is a more ethical alternative to purchasing. Here are a few questions to consider when deciding whether or not to pirate a piece of media:

Have you exhausted all other avenues for legally purchasing, renting or borrowing a copy of this media?

Is the alternative to pirating this media purchasing it or not reading/referencing it at all? If the former, how are you justifying the piracy?

Who is the victim of this particular piracy? Whether or not you think the creator(s) deserve to have their work pirated, you need to acknowledge there is someone who would otherwise be paid for their work.

If every consumer pirated this media, what would the consequences be? Would you be willing to claim responsibility for that outcome?

If you got this far,  thank you so much for reading! It is genuine work to try and understand the complexity behind every day decisions, especially when the topic at hand is as complicated as the modern digital lending crisis. Doing this research has changed the way that I understand and interact with digital media, and I hope you have found it informational as well.

Further Reading:

Panorama Project Releases Immersive Media & Books 2020 Research Report by Noorda and Berens

The Chafee Amendment: Improving Access To Information

National Center on Accessible Educational Materials

National Library Service for the Blind and Print Disabled

Books For People With Print Disabilites: The Internet Archive

Bookshare

Learning Ally

[meeedeee]

"A scanned book under CDL does not provide the same interactive experience as an e-book. CDL is primarily used for reference, preservation, or accessibility and may be useful in the following ways, among others:

1. To provide a DRM protected PDF or e-pub copy for students who cannot travel to the library to get a reserves book off the shelf (provided they sequester the physical book)

2. For the print-disabled who want larger print, or to utilize optical character recognition to listen to a book that is otherwise not available in audio format

3. For digital Interlibrary Loan, a common library practice that can provide limited full book access to patrons and which is currently restricted under most licensing regimes – but which has been permitted via photocopying for years"

https://www.libraryfutures.net/post/our-statement-on-hachette-v-internet-archive