Lesson I learned early: never catch a librarian. District Court Judge John G. Cottle apparently missed a formative traumatic experience because his recent decision against the Internet Archive, a beloved digital library nonprofit, has sparked outrage in the Bible archivist community.
Some quick background: In the early days of the Covid lockdown, the Internet Archive launched a program called the National Emergency Library (NEL). As library closures took millions and millions of books out of circulation, the Internet Archive wanted to help people stuck at home access information. NEL was part of a larger project called the Open Libraries Initiative, where the Internet Archive scans physical copies of library books and allows people to check them out digitally.
It was always supposed to be temporary, but NEL shut down early after some of the biggest publishers banded together to sue for copyright infringement. This week, Kettle sided with the publishers. He did not believe the Internet Archive’s argument that its digitization project fell under the fair use doctrine. Example line: “Copying and unauthorized provision of Works in Suit IA does not alter anything.” The Internet Archive plans to appeal.
Generally, I support the work of the Internet Archive. (The Wayback Machine deserves all the praise it gets, and then some.) As another general rule, I support writers’ efforts to protect their intellectual property and make money. Even before the trial, some writers, such as Colson Whitehead, criticized the NEL for cutting authors’ income. Additionally, professional groups such as the National Writers Guild of America and the Authors Guild, among others, applauded Koetl’s decision as a victory for creative people.
I wasn’t sure how I felt about all the fuss. Making it easier and cheaper for libraries to provide e-books seemed like an obvious good thing. But taking money from writers looked clearly bad. This fight over the rather niche issue of e-book copyright collides with broader, ongoing conversations about what artists are paid, what it means to own digital works, and corporate price gouging.
I called several people on both sides of the issue to learn more about their position—and ended up sitting on the phone for hours, feeling for all the world like a child listening to her beloved but divorcing parents complain bitterly about each other.
One important thing to understand about this conflict is that e-books and physical books are not sold to libraries in the same way. Unlike physical books, e-books are available licensed so instead of owning them, libraries are essentially renting them out. Each publisher has their own way of setting up licensing. Some are for a fixed term (say two years), while others are subject to renewal depending on how many times they are issued (say, every 26 times a book is borrowed). Keeping an e-book in circulation can cost libraries exponentially more than a paper copy. Of course, many librarians find these terms exploitative. Academic librarian Caroline Ball, who lives in the UK, tells me she had a business textbook that would cost £16,000 ($19,800) in one year.
Ball sees the recent ruling as a disaster for library access because it sides with the publishing companies that control these onerous licensing agreements. “It’s reprehensible,” she says.
Author and freelance journalist Edward Hasbrouck, who volunteers with the National Writers’ Union, does no considers the ruling reprehensible. In fact, he’s thrilled. He says the judge made the right choice and that the Internet Archive in San Francisco has a “typical Silicon Valley attitude.” cursed laws.” Hasbrouck finds it insulting to blame the ruling on poor e-book licensing. “The Internet Archive tried to impose their own de facto licensing terms — free — on us,” he says. He feels particularly bad for older writers with large catalogs, because he says they often suffer the most from the loss of e-book licensing deals.
