After Internet Archive (IA) lost its copyright infringement suit with major publishers this week, the organization wasted no time alleging that great harm has been done to society. As if it had the posts ready to go, IA alleged that research itself was in peril and even went so far as to shamelessly post on X that works by Orwell and Bradbury are now “no longer available”—as if its unlicensed repository provided the only access to 1984 or Fahrenheit 451.
If you don’t see the hypocrisy in citing those titles for the purpose of propaganda, you might as well not read the books. Funny, though, that literature is the subject because it is only human nature to consider even complex matters of law and policy through narrative. And because narrative requires heroes and villains, IA presumes to play the Rebel Alliance to the publishers Empire. One problem with this perspective is that if one insists the publishers are “villains,” then one must assume the authors are as well. Because here’s how things work in reality…
Every author owns the copyright rights in her book the moment the manuscript is finished. Whether she signs a deal with Random House or a small, independent imprint, she transfers at least part of her claim of copyright to the publisher in exchange for the publisher’s investment in producing, distributing, and marketing the book. Publishing agreements vary greatly, and sometimes, authors are disappointed. Nevertheless, most authors seek publishing deals rather than self-publish, and nobody commenting on the IA lawsuit should presume to tell authors that they are wrong to work with publishers.
Among the rights owned by the author is the right to “prepare derivative works.” With books, this means derivatives like translations, serials, motion picture adaptations, eBooks, and audiobooks. Typically, the author will transfer the right to prepare eBooks and audiobooks to the same publisher who produces and distributes the hardbound and paperback copies. Consequently, the author’s interest is aligned with the publisher’s interest in selling these electronic versions of the book. And quite often, the author’s share of audio and eBook sales is a higher percentage than her share in the sales of physical copies.
One way in which authors receive compensation from eBooks is through a variety of licensing regimes used by libraries around the country. Although there is no evidence that these licensing models hamper a library’s ability to serve its community, certain individuals, including IA founder Brewster Kahle, object to these licensing regimes as a matter of some principle they invented. That “principle” really comes down to the fact that they simply don’t like copyright rights, and Kahle et al. have made that very clear in public statements.
In fact, despite all the good IA provides with its database of hard-to-find works long in the public domain, Kahle’s fervent anti-copyright ideology seems to drive him to risk that worthy enterprise just to prove a point about which he is entirely wrong. In simple terms, IA et al. were determined to prove that libraries are entitled to prepare derivative works (i.e., make and distribute their own eBooks) instead of the publishers to whom those rights were assigned by the authors.
IA’s legal theories were so unfounded that the district court issued a judgment less than a week after oral arguments. And now that the appeals court has affirmed the obviousness of that judgment, IA is playing the victim on social media, like Icarus blaming the sun and gravity for his fate. In literary terms, we might recognize Kahle’s persistence against reason as that fatal flaw which can turn heroes into anti-heroes or villains. And wouldn’t it be a classic tragedy if the guy who wants to build the “New Library of Alexandria” managed to burn it all down in a grand display of hubris?
