Tag: Hachette et al. v. Internet Archive

Internet Archive as Cautionary Tale

Internet archive

Now that the December 3rd deadline has passed for Internet Archive to file for cert with the Supreme Court, the copyright case litigated by book publishers Hachette et al. is closed. The Second Circuit decision will stand, finding that IA’s legal theories were without merit—theories I have discussed in multiple posts and will not rehash again here. I have also compared the hubris of IA founder Brewster Kahle to Icarus et al. in context to the question of whether his anti-copyright agenda may be fatal to the archive itself. As such, there is little to add now that the Hachette case is concluded, but perhaps there is still value in IA as a cautionary tale at this moment in our political history.

There has been a lot of chatter asking why Silicon Valley pivoted away from progressives and toward the political right, but the question doesn’t resonate because, by my lights, the far right and far left want the same thing—to overwrite American institutions—and Silicon Valley has been happy to let both sides move fast and break as much as possible. It was clear more than a decade ago that the Left and Libertarian perception of Big Tech as Robin Hood (even if he was driving a Maserati) was about more than the rhetoric of providing access to “content” being kept from the public by “gatekeepers” and “rent seekers.”

Whether that message came from Google executives, the EFF, academia, or Kahle, it was the same nonsense wrapped in alternating red or blue packages appealing to one political sensibility or the other. So, the progressive-sounding rhetoric supporting IA’s anti-copyright agenda may not be uttered by oligarchs themselves, but the view is conducive to oligarchy the same way that bolshevism and fascism start out walking in opposite directions but wind up in the same place. Kahle’s presuming to arrogate an author’s rights to his organization to fulfill his personal utopian idea is barely more tolerable than the arrogance of Musk or Andreesen.

Like the erroneous litany on which Andreesen based the Techno Optimist Manifesto, Kahle’s vision of an Alexandrian Library in the cloud has been promoted on the false premises that society suffers from inadequate access to information and cultural works and that copyright is the cause. The complaint that copyright rights “lock up” works is a narrative invented by Silicon Valley as a mask for its predatory business practices, and the fact that Kahle et al. express the same fallacy from the perspective of librarians does not alter the harmful nature of the idea itself.

If Internet Archive were a for-profit business with executives pulling down Facebook, Spotify, or Google salaries, sympathy for its “cause” would find fewer fans on the Left. Therein lies the lesson about tech-utopians: whether they appeal to “progressives” or “conservatives,” they’re all preaching the same arrogant gospel that individual rights are a nuisance because they know best how the world should work.

Image: Phaeton, from “The Four Disgracers” Hendrick Goltzius Netherlandish After Cornelis Cornelisz van Haarlem Netherlandish

End of the Line for Controlled Digital Lending Theory

controlled digital lending

IA asks this Court to bless the large scale copying and distribution of copyrighted books without permission from or payment to the Publishers or authors.

The Second Circuit Court of Appeals yesterday affirmed that Internet Archive’s digital book lending model controlled digital lending (CDL) is not permitted by copyright law, including under the fair use exception. The outcome is a big deal and, at the same time, is not really big news. Copyright watchers grounded in what the law is (rather than what they wish it to be) were likely relieved but not surprised that the appeals court upheld a judgment, which the lower court originally issued just four days after oral arguments.

The lawsuit Hachette et al. v. Internet Archive was triggered by IA’s so-called National Emergency Library (NEL), an alleged response to the COVID shutdown whereby it arbitrarily made over one million digital books available without any kind of restriction. Because IA had no basis on which to claim it was responding to an “emergency” need, I maintain the NEL itself was a stunt designed to provoke litigation and take Brewster Kahle and friends’ copyright theories out for a ride. And as of yesterday, that ride is probably over.

Specifically, IA and a small group of academics hoped to prove that controlled digital lending is permitted by fair use. CDL is based on the theory that a library is permitted to make its own digital copy of a physical book in its collection and to loan either the digital or the physical copy to one reader at a time—and to then apply the scheme for as many physical copies as the library owns. Further, IA expanded the concept to create its Open Library by “partnering” with various libraries around the country to effectively count the physical copies on all those shelves and increase the number of readers to which the digital copies would be loaned.

The Second Circuit affirmed not only that the Open Library model is not permitted but that the CDL practice is not a fair use—even if it were limited to the physical books in IA’s possession. With the one distinction that the circuit court reversed the lower court’s finding that IA’s purpose is “commercial” under fair use factor one, IA lost resoundingly on all four fair use factors.

In short, CDL is not transformative under factor one because its purpose is no different than the legal eBook lending models offered by publishers. This finding informs factor four. Because the purpose of the use is not transformative, the CDL scheme amounts to a market substitute and is, therefore, a potential market harm. Factors two (nature of the works used) and three (amount of the works copied) barely warrant discussion. The books in suit are expressive in nature, which favors the plaintiff; and IA does not dispute that it copied and made whole books available. Copying whole works may be permissible, but only possibly if the use is transformative.

Since before this suit began, IA has claimed to be a champion for all libraries, even going so far as to assert that CDL is simply doing what all libraries do—i.e., to “buy books and loan books.” But that rhetoric, conveniently facile for the media, obfuscated the more complex truth that IA, its colleagues, and supporting amici were pushing a theory with no foundation in law. CDL is a self-indulgent thought experiment for a handful of academics and activists with no skin in the game of creating literary works. And IA’s claim to be acting like any other library was simply untrue.

To those who believe the law should be different to facilitate IA’s alleged social benefit, I have considered the intent of CDL (and the alleged burden of eBook licensing) and find no evidence to support the claim that CDL fulfils an unmet need. In fact, as stated in past posts, Kahle’s dream of digitizing everything and making it all freely available is not only harmful to future authorship but is a threat to local libraries. Further, it bears repeating that the publishers in this case represent thousands of authors, while IA represents the interests of no authors.

I get why even creators are often persuaded by Internet Archive’s claims. After all, creators tend to love libraries and are instinctively wary of corporations, including publishers. But to put this in contemporary context, IA’s mass digitization and “lending” scheme, which would harm future authorship, is hardly much better than AI’s mass digitization and “training” scheme, which would also harm future authorship. (See what I did with the letters there?) Mass copying and distribution of protected works should always be viewed skeptically because the purpose is rarely transformative and non-threatening to creators. As the court states in yesterday’s judgment:

Within the framework of the Copyright Act, IA’s argument regarding the public interest is shortsighted. True, libraries and consumers may reap some short-term benefits from access to free digital books, but what are the long-term consequences? If authors and creators knew that their original works could be copied and disseminated for free, there would be little motivation to produce new works. And a dearth of creative activity would undoubtedly negatively impact the public. It is this reality that the Copyright Act seeks to avoid.

Controlled Digital Lending is a Dubious Proposal in Every Sense

On March 24, the court in Hachette et al. v. Internet Archive wholly rejected IA’s fair use defense constructed on the theory called Controlled Digital Lending (CDL). Prior to and since that ruling, various parties have tried to characterize this case as an attack by the publishers against the core function of libraries, alleging that libraries either already depend, or will come to depend, on CDL to meet the needs of communities in the digital age.

It is easy to promote a message that says Library good. Publisher bad. And I get why various people, including policymakers and librarians, might respond to the slogan. But the populist message obscures what a convoluted, if not insidious, proposal CDL truly is. While it may be true that select libraries engage in limited activities, long exempted by statute, which certain vested interests now describe as akin to CDL, it is erroneous to suggest that CDL, as envisioned by its proponents, is inherent to library operations. On the contrary, it is a complicated and expensive proposal—even if it were legal.

The CDL theory, based on ideas first proposed by Professor Michelle Wu (Georgetown University), is fleshed out and advocated in a 2018 white paper written by Kyle Courtney (Library Futures Chair) and David R. Hansen (Authors Alliance Executive Director). According to their reading of the fair use doctrine in conjunction with first sale doctrine,[1] Courtney and Hansen argue that libraries are legally permitted to erect their own ebook lending models by digitizing and then loaning digital books based on the number of legally obtained physical copies in the collection.

On its face, the concept sounds fair-minded and progressive—hypothetically adding new digital access while allowing the library to bypass (i.e., not pay for) current ebook licensing/lending regimes like OverDrive. And according to the theory, CDL will not disrupt the authors’ interests because it purports to maintain, rather than alter, longstanding copyright doctrine. Who wouldn’t endorse that from the sound of it? Candidly, someone who is not well-versed in copyright law or contemplating the practical implications of the CDL model.

Sparing readers a detailed breakdown of the legal constructs in the 42-page white paper, suffice to say, the keystone argument—a fair use defense riding on the first sale doctrine—was unequivocally rejected by the court in Hachette last month because the central points had already been made and rejected by this same circuit in contemporary cases.[2] In fact, CDL proponents may not be thrilled that Internet Archive was the first (and perhaps the last) institution to represent their theory in court because, even with millions in revenue, IA failed to implement the “controlled” part of the model.[3]

This begs an important question for libraries: if IA is their Galahad in the quest for CDL, why does it fail operationally to implement the model? That the underlying legal theory would fail was hardly in doubt, and this alone should doom CDL as a consideration for any library. But it is further notable that, even if CDL were legal in some form, implementing it would likely be more costly than the current ebook lending regime the library would be circumventing.

CDL Would Not be Free or Liability Free

Launching a CDL model, as set forth in the white paper, implies considerable expense, requiring either a library-developed system or paying to use a system developed by a third party. Presumably, the CDL folks imagined that Internet Archive would be that third party, but as that organization failed to adhere to the controls in the model, this should prompt librarians to consider what it would cost to adopt “real” CDL, and for what purpose.

Without addressing the practical implications of a holistic, auditable CDL system, proponents appear to recommend that libraries invest substantial resources in a new, complex model to manage physical and digital book lending and then wait to see if it gets sued. Because, astoundingly, the white paper contains a whole section advising libraries as to how they might limit risk when implementing CDL. It must be nice to sit in an office at an elite law school, devise a hypothesis that some proscribed conduct is “legal,” and then suggest somebody else try it to find out. And all this fuss, cost, and opportunity cost is to circumvent existing models that make ebooks available for about a dollar or less per loan?

The Future of Libraries is Not About eBooks

Finally, it cannot be ignored that the sustainability of libraries does not lie in providing more access to digital books and other materials via websites. Libraries are physical spaces that play important and diverse roles in each community, and their future depends on maintaining relevance as physical spaces operated by professionals with certain skills and sensitivities to local needs. Whether that means story time for children or hosting career counselors for adults or a thousand other initiatives, digital book lending is not a community connecting activity any more than shopping on Amazon is a social experience.

If ebook loans become too prominent a feature of a library system, those physical spaces and professional librarians will no longer be needed (i.e., funded). And in case it isn’t obvious by now, digital platforms tend to swallow independent institutions. Much like internet consolidation has nearly exterminated the local and independent newspaper, a similar consolidation of reading material into a more centralized, globally accessible network (as envisioned by Internet Archive’s Brewster Kahle) would be fatal to the local library as a lending institution.

Libraries should spend their limited resources on building and maintaining personal relationships with communities rather than waste time with complicated and erroneous workarounds to copyright rights. Frankly, the well-funded academics and organizations peddling CDL would do more good for libraries if they just hosted a damn bake sale.

[1] Specifically, the paper argues that factor one of the fair use test favors CDL because its “purpose” is to fulfill the intent of the first sale doctrine—and then, they argue this is further bolstered because libraries are not commercial entities.

[2] e.g., ReDigi, TVEyes.

[3] For instance, the CDL paper does not envision an unaccountable system whereby physical books are stored in shipping containers as the basis for digital copy loans. Internet Archive does this.

Photo by: JackF