Publishers’ Suit Against Internet Archive is Pro-Author, Not Anti-Library

“The raggedy state of my books that some readers and educators hand me to sign is the best compliment of all.” – Sandra Cisneros –

The matter of Hachette et al. v. Internet Archive should be short work for a court in the Second Circuit (or any circuit). The allegations about IA imply an operation that is barely distinguishable from other mass-piracy enterprises. which have sent their owners to jail. The motion for summary judgment (MSJ), filed by the publishers on July 7, is a catalog of statements of undisputed material facts (SUMF), a fraction of which should obliterate IA’s claims that it operates within the most elastic reading of the copyright law.

In a follow-up post, I’ll discuss the legal questions presented and why I believe more firmly now than I did two years ago that IA will lose on every point in this case. But for the moment, I’m calling bullshit on the big theme IA tries to sell in the court of public opinion—namely, its claim to be just another library “doing what libraries do” and that it is, therefore, a target of a voracious publishing industry and a proxy for the interests of all libraries.

Without getting into the weeds, IA’s conduct is highly distinct from ordinary libraries for three key reasons: 1) its founder Brewster Kahle has repeatedly stated his agenda to obviate copyright law and make “every book in the world” available online for free; 2) IA engages in a scanning-to-ebook scheme that circumvents ordinary library licensing under its own theory called Controlled Digital Lending (CDL); and 3) even if CDL were well founded in copyright law, IA does not adhere to its own invented restrictions set forth by the regime.

So the contention that IA functions like any other library is untrue, as the aforementioned catalog of material facts makes clear, and offensive, as author Sandra Cisneros makes clear in her declaration to the court, also filed on July 7. “Real libraries,” she writes, “do not do what Internet Archive does. The libraries that raised me paid for their books, they never stole them.” Simple and to the point. But Cisneros’s testimony in this matter contains multitudes.

Many authors will recognize their own personal battles with both craft and purpose when they read Cisneros divulge, “About three years after The House on Mango Street was published, when I was 33 years old, I found myself unable to pay the rent and considered killing myself because it was so painful to feel like I was of no value to society, even though I knew I was a gifted writer.” That’s more than an economic statement. It is existential in every sense. And countless artists have been there in one way or another.

So, to the snarky bros of tech utopia, the self-righteous wonks at EFF, the privileged dilettantes of anti-copyright academia, Cory Doctorow, and most especially Brewster Kahle, you are all invited, with prejudice, to go fuck yourselves. Because what, one might ask, was Cisneros’s solution to transforming the growing popularity of her work into a measure of financial sustainability for herself? Naturally, it was copyright law.

“…my agent of the last thirty-five years, Susan Bergholz, approached me at this time and helped me to enforce my rights as an author,” writes Cisneros, stating that she initially asserted her rights among some smaller publishers but notably not with Penguin/Random House—a relationship she describes as integral to sustaining her as an author.

This lawsuit is not about a billion-dollar industry seeking to hinder the lawful conduct of a real library. It is about a multimillionaire ideologue hijacking the author’s livelihood for his own commercial gain, and because he believes he knows best how the world should work. We have enough ideologues robbing individuals of their agency these days. Why is a tech baron seeking to rob book authors of their rights any better?

“It was like I had gone to a pawn shop and seen my stolen possessions on sale,” Cisneros tells the court about visiting the IA  platform and seeing her work distributed for free and without license. She also notes that she has personally given away many copies of her books to readers who, like her own childhood family, cannot afford to buy books.

Cisneros’s testimony is compelling because IA’s defenses cannot breathe in law, but only in PR, where cute graphics and grabby headlines falsely portray it as a Robin Hood taking on industry. And lest we forget, her voice is not alone. When this litigation was triggered in 2020 by IA’s so-called National Emergency Library, citing the pandemic as an excuse to distribute 1.4 million unlicensed titles, authors Colson Whitehead, Alexander Chee, and others sharply criticized the move. “The Internet Archive’s ‘emergency’ copyrights grab endangers many already in terrible danger,” Chee tweeted at the time.

More authors should continue to call out IA for its conduct—if not for themselves, then for the next generation of writers. “The ability of copyright law to incentivize the creation of new works will be profoundly undermined if Internet Archive devalues books further by continuing its mission to put bootleg copies of every book it can acquire on the Website,” the publishers’ motion argues.

It is a simple rule of economics that you cannot eliminate fair trade in distribution without destroying the incentive to produce—except perhaps as an eccentric hobby. “Aided by its industrial scanning apparatus and book pipeline, IA can realistically achieve its goal of offering 80% of all books currently residing in libraries within the decade,” the publishers’ motion states. If that ambition were realized, one ironic result could be shuttering real libraries around the country because an operation like IA would render those institutions obsolete.

But the more devastating and certain effect would be to kill many prospective writing careers in their fragile beginnings, a period Cisneros describes as discovering her voice when she found the child narrator for The House on Mango Street. She says, “Best of all, writing in a younger voice allowed me to name that thing without a name—that shame of being poor, of being female, of being not quite good enough, and examine where it had come from and why, so I could exchange shame for celebration.”

That’s the author Brewster and his swarm of elitist amici want to deny both income and the right to make her own choices about her work. As she writes in a latter chapter in Mango Street, “People who live on hills sleep so close to the stars they forget those of us who live too much on Earth.”

Note: Some quotes by Cisneros are transcribed from the introduction to the audiobook version of The House on Mango Street, and my punctuation may not match hers.

NOTE: Originally published that Neil Gaiman criticized the NEL, as reported by NPR. Gaiman later tweeted that the article misrepresented his views.

David Newhoff
David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

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