The Second District Court of New York delivered a blow to fair use in the Hachette v. Internet Archive case, finding in favor of the plaintiffs on all four factors and upholding the lower court’s decision. This is obviously a disappointment, and while we will leave the legal analysis to the lawyers, we want to address a few non-comprehensive community concerns, though next steps in the case remain unclear.
Library administered digital lending is growing, and we will continue our work on digital ownership with our partners, including the Internet Archive. The scenarios for digitization in the community drafted technical standards for Controlled Digital Lending document include:
The decision does not implicate these scenarios. The Second Circuit Court stuck to the facts of the case, which was about IA lending digitized copies of books that were licensable: they did not address every implementation of CDL by libraries.
The implication that libraries can obtain digital books that already have licenses only through a proprietary app environment, however, is disheartening. In the decision, the judges write: “the library eBook lending market is thriving… [p]ublishers and their authors have tapped into a profitable, growing market.” This statement overlooks a number of key facts. More than 90% of the public library digital market is controlled by one private equity leveraged company that bypasses the library through their app, which makes digital readers think the rental app is their library. In the worst case scenario, this decision gives publishers carte blanche to continue to force libraries into unconscionable monopoly contracts and lock them into their closed surveillance apps. In the best case scenario, publishers, libraries, and authors band together to create services that support libraries.
Librarians rely on format shifting and whole book digitization in a variety of contexts. While the court seems to view digital lending as distinct from format shifting, conflicting with the seminal Sony case, digitizing a book to lend and keeping a 1:1 ratio of owned to loaned is a similar process to making a photocopy. Controlled Digital Lending replicates the print lending process digitally in a way that respects copyright by maintaining this ratio. Similar to a photocopy or resale of a book, the publisher and author were paid when their work was purchased or acquired. What do the big publishers want to come after next – used bookstores?
Over the past four years we have advocated for library choice in the digital market, supporting open access to knowledge. We will continue to do so, and to support the Internet Archive’s fight for the rights of libraries to “own, lend, and preserve books.”
Gary Price has a started roundup of media, and we’ll keep adding to our further reading list below:
Content licensed under CC BY 4.0
