Why a ruling against the Internet Archive hurts libraries
September 13, 2024 11:02 AM Subscribe
It locks them into an e-book ecosystem designed to extract as much money as possible while harvesting (and reselling) reader data en masse. "This decision harms libraries. It locks them into an e-book ecosystem designed to extract as much money as possible while harvesting (and reselling) reader data en masse. "
"This decision also renders the fair use doctrine—legally crucial in everything from parody to education to news reporting—almost unusable."
Also:
What happened last Friday in Hachette v. Internet Archive? (archive.org blog post)
"This decision also renders the fair use doctrine—legally crucial in everything from parody to education to news reporting—almost unusable."
Also:
What happened last Friday in Hachette v. Internet Archive? (archive.org blog post)
Gotta be really clear, this statement...
Some libraries have turned to another solution: controlled digital lending, or CDL, a process by which a library scans the physical books it already has in its collection, makes secure digital copies, and lends those out on a one-to-one “owned to loaned” ratio. The Internet Archive was an early pioneer of this technique.
...has not been mostly true from my experience. CDL is a great idea, in my opinion, and one which the Archive had been testing the waters with, effectively, for some time. But they had been trying hard to get other libraries to sign on to their own CDL processes (i.e. this wasn't the Archive saying "we'll supply the infrastructure", though I suspect they would have if asked) and there has been very little uptake. This was partly due to libraries being somewhat risk-averse--if you toy with pushing the envelope on legal matters you are risking the town/city/university's money and goodwill--but also that the existing solution (Overdrive and the like) was considered, by many, to be "good enough."
Now I personally do not think it was good enough, it skewed too heavily towards what publishers wanted and was expensive. But compared to the costs and hassle of spinning up ones own digital infrastructure to handle Controlled Digital Lending themselves, I think many libraries decided, on balance, this was okay.
The question for me, now, becomes "Did this ruling hurt libraries' future abilities to lend books in a way that might be meaningful and useful to them and their communities?" and I think the answer is, unfortunately, yes it certainly did.
It's exhausting listening to people yelling at libraries about what they should be doing as if public infrastructure were funded the way the Internet Archive is (it isn't) or were not answerable to their communities in ways the Internet Archive isn't. I have always been on Team Archive during this entire dispute, but am also on Team Public Libraries and it's been difficult to sometimes thread that needle of explaining how the accountability structure the Archive works within is different than the accountability structure most libraries work in (for better and for worse) and that makes some of this difficult to explain. Molly did such a great job with her thread yesterday. I hope people read that one also.
posted by jessamyn at 12:00 PM on September 13 [32 favorites]
Some libraries have turned to another solution: controlled digital lending, or CDL, a process by which a library scans the physical books it already has in its collection, makes secure digital copies, and lends those out on a one-to-one “owned to loaned” ratio. The Internet Archive was an early pioneer of this technique.
...has not been mostly true from my experience. CDL is a great idea, in my opinion, and one which the Archive had been testing the waters with, effectively, for some time. But they had been trying hard to get other libraries to sign on to their own CDL processes (i.e. this wasn't the Archive saying "we'll supply the infrastructure", though I suspect they would have if asked) and there has been very little uptake. This was partly due to libraries being somewhat risk-averse--if you toy with pushing the envelope on legal matters you are risking the town/city/university's money and goodwill--but also that the existing solution (Overdrive and the like) was considered, by many, to be "good enough."
Now I personally do not think it was good enough, it skewed too heavily towards what publishers wanted and was expensive. But compared to the costs and hassle of spinning up ones own digital infrastructure to handle Controlled Digital Lending themselves, I think many libraries decided, on balance, this was okay.
The question for me, now, becomes "Did this ruling hurt libraries' future abilities to lend books in a way that might be meaningful and useful to them and their communities?" and I think the answer is, unfortunately, yes it certainly did.
It's exhausting listening to people yelling at libraries about what they should be doing as if public infrastructure were funded the way the Internet Archive is (it isn't) or were not answerable to their communities in ways the Internet Archive isn't. I have always been on Team Archive during this entire dispute, but am also on Team Public Libraries and it's been difficult to sometimes thread that needle of explaining how the accountability structure the Archive works within is different than the accountability structure most libraries work in (for better and for worse) and that makes some of this difficult to explain. Molly did such a great job with her thread yesterday. I hope people read that one also.
posted by jessamyn at 12:00 PM on September 13 [32 favorites]
As a local public library trustee, I was also rooting for the Internet Archive.
Not because we intend to do CDL ourselves, but because the publishers keep getting their way -- which only emboldens them to offer worse and more-expensive terms every year.
And because most public libraries are associated with a municipality, which has a probably-erring-on-the-side-of-safety legal counsel, I can't imagine that more than a handful of local libraries could ever dare to try it. So we need the IA to fight -- and win -- this fight, to keep the publishers from making it impossible for libraries to lend electronic materials.
Oh, I doubt they would ever come out and actually say that they want libraries to die, but they would certainly make their subscriptions so expensive that no one can afford them. Very much a "nO oNe WaNtS To WoRk AnYmoRe!" argument...
posted by wenestvedt at 12:15 PM on September 13 [13 favorites]
Not because we intend to do CDL ourselves, but because the publishers keep getting their way -- which only emboldens them to offer worse and more-expensive terms every year.
And because most public libraries are associated with a municipality, which has a probably-erring-on-the-side-of-safety legal counsel, I can't imagine that more than a handful of local libraries could ever dare to try it. So we need the IA to fight -- and win -- this fight, to keep the publishers from making it impossible for libraries to lend electronic materials.
Oh, I doubt they would ever come out and actually say that they want libraries to die, but they would certainly make their subscriptions so expensive that no one can afford them. Very much a "nO oNe WaNtS To WoRk AnYmoRe!" argument...
posted by wenestvedt at 12:15 PM on September 13 [13 favorites]
There was a short period of time where we believed that the internet would be our shining castle on the hill containing knowledge that would be accessible to everyone and uplift us all. Instead, capitalism will simply make this a global cesspit in which humanity will be drowned. Hard to say where the final blow will come from. Will it be environmental in the collapse of the physical world we're so determined to make uninhabitable, or will greed and hate inevitably destroy what makes us human? Maybe it's all so intertwined that it will just spiral until we end up with a whimper and not a bang.
posted by BlueHorse at 12:19 PM on September 13 [11 favorites]
posted by BlueHorse at 12:19 PM on September 13 [11 favorites]
To be honest, I had been thinking of CDL primarily in relation to academic, rather than public libraries. It makes sense that it would be harder for public libraries to implement the infrastructure for CDL, but I think it is more realistic for academic libraries, and also maybe even more critical given that the academic book market is even more expensive and e-textbooks are crazy. But I am assuming this ruling says no CDL for anybody, is that right?
posted by DiscourseMarker at 12:23 PM on September 13 [3 favorites]
posted by DiscourseMarker at 12:23 PM on September 13 [3 favorites]
Though I suppose it depends -- if there is not a commercially available ebook, then is CDL allowed? (not that I agree with the publishers' tortured logic about ebook sales being hurt absent any actual data).
posted by DiscourseMarker at 12:25 PM on September 13
posted by DiscourseMarker at 12:25 PM on September 13
While I'm 100% on the side of libraries and in principle the IA, the lead article leaves out a really important fact. The CDL method they describe, of scanning a book and then lending it out digitally in this 1:1 method, was expanded by IA in the pandemic to allow more or less unlimited borrows of a book they'd scanned. That's a big difference and you can see why the publishers took issue.
I do think we need to figure out something new but this particular case was not a strong one as far as finding a compromise or stepwise change to the existing (obviously inadequate) systems for digital lending. I hope there is some kind of strong centralized action that re-energizes the library system but I'm not optimistic that's a priority for legislators or agencies right now.
posted by BlackLeotardFront at 12:29 PM on September 13 [9 favorites]
I do think we need to figure out something new but this particular case was not a strong one as far as finding a compromise or stepwise change to the existing (obviously inadequate) systems for digital lending. I hope there is some kind of strong centralized action that re-energizes the library system but I'm not optimistic that's a priority for legislators or agencies right now.
posted by BlackLeotardFront at 12:29 PM on September 13 [9 favorites]
While I'm 100% on the side of libraries and in principle the IA, the lead article leaves out a really important fact.
You should also read Molly White's article, which covers this in an addenda. In the publishers' own words:
You should also read Molly White's article, which covers this in an addenda. In the publishers' own words:
As a point of clarity, we sued Internet Archive on June 1, 2020, for its entire practice of “controlled digital lending,” not only the extra-extreme version that it rolled out in March 2020 with its hyperbolic “National Emergency Library” (NEL) and shut down on June 16, 2020, shortly after the U.S. Copyright Office suggested it was likely outside the bounds of fair use. We previewed a suit in February 2019 with this public statement, which regrettably was ignored. When the pandemic hit, the underlying suit was already being prepared.posted by zamboni at 12:36 PM on September 13 [8 favorites]
People own scanners and BitTorrent is a thing, as is a whac-a-mole of Pirate Bay proxies and cheap offshore seedboxes that are not the least bit fussy about verifying their customers' identities. PDF scans of even quite hefty books are trivially small compared to movies or TV episodes and literally millions of them would fit on a seedbox that costs about five bucks per month to rent. It would be just awful if Hachette, HarperCollins, Wiley, and Penguin Random House were to suffer an amorphous, leaderless, uncoordinated, decentralized piracy campaign specifically targeting their most lucrative titles, with NFO files included in every release making it clear that its existence was directly motivated by this lawsuit. I hope for the sake of their stock prices that nobody starts doing that to them.
posted by flabdablet at 1:04 PM on September 13 [9 favorites]
posted by flabdablet at 1:04 PM on September 13 [9 favorites]
To be honest, I had been thinking of CDL primarily in relation to academic, rather than public libraries...and also maybe even more critical given that the academic book market is even more expensive...
Among younger academics it's an open secret that most of us are relying on pirated pdfs of titles to do research. I don't see this changing that. And in a weird way that makes academic publishers complicit in the violations of their own copyrights. If books are priced such that the only way to afford to do the research necessary to produce a book is to pirate other books, then the pirating becomes a necessary part of the publishing process.
posted by nangua at 1:24 PM on September 13 [7 favorites]
Among younger academics it's an open secret that most of us are relying on pirated pdfs of titles to do research. I don't see this changing that. And in a weird way that makes academic publishers complicit in the violations of their own copyrights. If books are priced such that the only way to afford to do the research necessary to produce a book is to pirate other books, then the pirating becomes a necessary part of the publishing process.
posted by nangua at 1:24 PM on September 13 [7 favorites]
Book piracy is already trivially easy. From a piracy point of view, it's not even about scanning physical books and making PDFs. It's about stripping the metadata off of ebooks or using OCR to turn a scanned book into an ebook. An epub file is going to be so much smaller than a PDF. And torrents for all of the popular new works (of genre fiction at least) are easily searchable on the web with download times measured in single-digit seconds.
posted by thecjm at 1:29 PM on September 13 [5 favorites]
posted by thecjm at 1:29 PM on September 13 [5 favorites]
One important point that I think is getting lost in this controversy (indeed, it's relegated to the very last paragraph of the article) is that the pressure needs to be on Congress. While there is some truly regrettable (and bizarre) language in the opinion regarding market harm, the idea that what IA was doing with CDL constitutes fair use as that concept has been construed by the Supreme Court is ludicrous. The Second Circuit is not free to disregard that precedent, and SCOTUS obviously isn't going to change course. Congress, on the other hand, could fix this entire problem by adding like two sentences to the Copyright Act.
posted by sinfony at 2:24 PM on September 13 [4 favorites]
posted by sinfony at 2:24 PM on September 13 [4 favorites]
(re the above)
I see - you're quite right. Though I have to imagine the emergency library only accelerated this project's doom at the publishers' hands.
posted by BlackLeotardFront at 2:42 PM on September 13
I see - you're quite right. Though I have to imagine the emergency library only accelerated this project's doom at the publishers' hands.
posted by BlackLeotardFront at 2:42 PM on September 13
I'd be nice if Russia and/or China had simply declare library genesis and sci-hub as national security concerns, provided them with good servers, and promoted them.
If that'd happened, then internet archive would theoretically become a US national security concern, in that if internet archive declines then Russia and/or China would gain significant control over what Americans read.
Yet sadly all the spies have become non-tech stupid now, because now they just develop spyware and hack each other all day.
posted by jeffburdges at 3:38 PM on September 13
If that'd happened, then internet archive would theoretically become a US national security concern, in that if internet archive declines then Russia and/or China would gain significant control over what Americans read.
Yet sadly all the spies have become non-tech stupid now, because now they just develop spyware and hack each other all day.
posted by jeffburdges at 3:38 PM on September 13
To be honest, I had been thinking of CDL primarily in relation to academic, rather than public libraries. It makes sense that it would be harder for public libraries to implement the infrastructure for CDL, but I think it is more realistic for academic libraries, and also maybe even more critical given that the academic book market is even more expensive and e-textbooks are crazy.
E-book licenses for academic titles are often insane. A hardback copy that we might pay $50 for and lend out as much as is possible until the book falls apart could be $600 for a DRM-enabled ebook version that likely also has an "expiration date" or limited number of checkouts.
During the pandemic, when we shifted ENTIRELY to purchasing e-book titles and had limited access to our print collections because of campus closures (on top of a 25% budget cut) it just really brought all this to a boil.
I agree with my librarian colleagues above, and while I'm definitely on Team Internet Archive here, I really wish this case centered actual libraries and librarians and the limitations they deal with -- not a millionaire-funded non profit with some of its own ideas that are a bit untethered from actual communities.
posted by pantarei70 at 4:27 PM on September 13 [6 favorites]
E-book licenses for academic titles are often insane. A hardback copy that we might pay $50 for and lend out as much as is possible until the book falls apart could be $600 for a DRM-enabled ebook version that likely also has an "expiration date" or limited number of checkouts.
During the pandemic, when we shifted ENTIRELY to purchasing e-book titles and had limited access to our print collections because of campus closures (on top of a 25% budget cut) it just really brought all this to a boil.
I agree with my librarian colleagues above, and while I'm definitely on Team Internet Archive here, I really wish this case centered actual libraries and librarians and the limitations they deal with -- not a millionaire-funded non profit with some of its own ideas that are a bit untethered from actual communities.
posted by pantarei70 at 4:27 PM on September 13 [6 favorites]
The double whammy is that demand is shifting to electronic titles, as the cost for those items climbs. It's unsustainable, which I think is what the publishers want.
posted by wenestvedt at 8:15 PM on September 13 [1 favorite]
posted by wenestvedt at 8:15 PM on September 13 [1 favorite]
It's about stripping the metadata off of ebooks or using OCR to turn a scanned book into an ebook. An epub file is going to be so much smaller than a PDF. And torrents for all of the popular new works (of genre fiction at least) are easily searchable on the web with download times measured in single-digit seconds.
Oh my goodness. I hope the public never finds out about that. Why, people might just decide to give up on dealing with the endlessly rising tide of DRM bullshit permeating every aspect of modern life despite the small dent that doing so would put in the passive incomes of the small yet plucky band of hardworking, under-appreciated billionaires who own the majority stakes in all of our wonderful mega-corporations.
posted by flabdablet at 10:26 PM on September 13 [1 favorite]
Oh my goodness. I hope the public never finds out about that. Why, people might just decide to give up on dealing with the endlessly rising tide of DRM bullshit permeating every aspect of modern life despite the small dent that doing so would put in the passive incomes of the small yet plucky band of hardworking, under-appreciated billionaires who own the majority stakes in all of our wonderful mega-corporations.
posted by flabdablet at 10:26 PM on September 13 [1 favorite]
« Older It's not just Lies about Immigrants... But... | My fake plastic love Newer »
posted by Dr. Twist at 11:37 AM on September 13 [10 favorites]