Those who have declared war on public libraries scored a major victory with one court effectively declaring that they are just piracy.
The war on reading, education, and public libraries is continuing. Already, we’ve seen far right lawmakers trying to pass bills to jail librarians for the crime of lending books that may contain LGBTQ+ content. While far right politician’s are working hard to put an end to public libraries and discourage reading, they aren’t the only ones trying to put an end to public libraries.
Another major force attempting to demolish the very concept of a public library are, somewhat ironically, the publishers themselves. Back in 2020, Big Publishing filed a lawsuit against the Internet Archive. At the time, the COVID-19 pandemic was raging and physical public libraries had to be shut down to prevent the spread of the disease. So, on an emergency basis, the Internet Archive increased the number of people who could borrow a book (complete with DRM to ensure it get returned) so that people could supplement their reading despite not being able to check out physical books at their local physical library. Well, for Big Publishing, the idea that people are reading books is an idea that shall not stand and, as a result, sent their team of high priced lawyers to go after the public library.
While some out there try to justify the lawsuit by saying that the Internet Archive is breaching copyright laws with their actions, Big Publishing, apparently, had a much bigger goal in mind: to take down public libraries completely despite the obvious public good they provide. This was evident with an op-ed by Kenneth Whyte who, at the time, basically argued that public libraries are nothing but hubs for piracy. Years later, his comments really do have to be read to be believed that someone was that crazy to write them. Here’s a few excerpts from his piece:
Last January, the U.S. Authors Guild declared a “crisis of epic proportions.” The median income for its members, including full-time, part-time, traditionally published and self-published authors, was US$6,080 in 2017, down from US$10,500 in 2009. If you isolate what the authors made on book sales (as opposed to speech-making and pole dancing), their median income was US$3,100. Gentrified authors, those working with traditional publishing houses, made US$12,400.
The crisis is just as epic in Canada, where the average writer made $9,380 last year, according to the Writers’ Union of Canada. That’s down 78 per cent from 1998.
Writers are loath to draw a line between the fact that they’re poor and the fact that four out of five of their patrons get their books at no charge. Most of us grew up in libraries. We love libraries. Our first library card was as important to us as our first driver’s licence. We do our research in libraries and meet our audiences in libraries. We think libraries are important civic institutions. It is difficult to conceive of them as problematic, so we ignore inconvenient facts to shield libraries from embarrassment.
Which returns us to the crux of the matter: For their funding, libraries rely on the traffic generated by pimping free entertainment to people who can afford it. All the genuine good they do is to some extent made possible by being a net harm to literature.
The comments, of course, are stunning today just as they were stunning back then, but it does highlight the real goal Big Publishing has in mind when going after the Internet Archive. It’s less of putting a stop to their specific book lending program and more of a stepping stone to target public libraries in general. For Big Publishing, they are salivating at the day they can finally end public libraries across North America and they can use the murder of the Internet Archive as their weapon to carry out this mission.
Those ambitions appear to be, for the moment, one step closer to reality. A recent Second Circuit ruling has come out and the Internet Archive, along with the public interest, lost. From the AV Club:
The Internet Archive has lost its appeal in the copyright case against Hachette and three other publishers. The Second Circuit Court of Appeals affirmed the previous decision, from March 2023, that the Internet Archive’s Open Library program qualifies as copyright infringement. Hachette, HarperCollins, Penguin Random House, and Wiley initially filed a lawsuit against the popular nonprofit organization in 2020.
“This appeal presents the following question: Is it ‘fair use” for a nonprofit organization to scan copyright-protected print books in their entirety, and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors?” Wednesday’s decision reads. “Applying the relevant provisions of the Copyright Act as well as binding Supreme Court and Second Circuit precedent, we conclude the answer is no.”
The Internet Archive is a longstanding organization that preserves and provides access to digitized content, beginning in 1996 to save the “ephemeral” content of the Internet. In its mission to “provide Universal Access to All Knowledge,” the org expanded to digital versions of other published works, with “special attention” paid to books. “Not everyone has access to a public or academic library with a good collection, so to provide universal access we need to provide digital versions of books,” IA states on its website. “One of the Internet Archive’s missions is to serve people who have difficulty interacting with physical books, so most of our digitized books are available to people with print disabilities.”
It’s really unfortunate news and, hopefully, the Internet Archive can appeal this ridiculous ruling. While that was bad news, compounding matters is the fact tat Big Publishing scored a secondary victory in their quest to murder public libraries in general. From TechDirt:
The final part of the ruling really is a tragic insult to the public. The Internet Archive made a final argument that the library should be allowed to continue given its substantial public benefit. But the Court, ridiculously, claims that the public gets a greater benefit from the library being shut down, and mocks the idea that expanding access to the public is all that important.
Indeed, this next section is going to do tremendous damage to fights for an open internet and against copyright maximalism and how it locks up knowledge. This whole section is basically writing the public benefit out of copyright law, even though benefiting the public is the entire purpose of copyright law. And, on top of it, it argues that libraries disincentivize authors by offering books for free. Which is crazy.
We conclude that both Publishers and the public will benefit if IA’s use is denied.
To be sure, expanding access to knowledge would, in a general sense, benefit the public. But “[a]ny copyright infringer may claim to benefit the public by increasing public access to the copyrighted work.” Harper & Row, 471 U.S. at 569. That does not alone render the infringement lawful. Indeed, the Copyright Act and its empowering constitutional authority reflect a considered judgment that “the Progress of Science and useful Arts” is best promoted by laws that protect authors’ original works and permit authors to set the terms of engagement, at least for a limited time. See Sony, 464 U.S. at 429. Doing so benefits the public “by providing rewards for authorship.” Google Books, 804 F.3d at 212. This monopolistic power is a feature, not a bug, of the Copyright Act.
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.
That bolded line in that paragraph there is exactly what the publishers wanted: a knife in the back of libraries. It’s literally saying “sure, libraries may benefit the public, but if they continue who will continue to write?”
This is completely disconnected from reality. What authors choose not to write because their book is available to be freely borrowed from a library? None. And yet, this is now precedent in the Second Circuit.
It’s a fantasyland claim.
Again, the Open Library works in a manner no different from any regular library from the point of view of a publisher or author. A book is purchased or donated (the publisher and the author therefore get their money) and then it can be lent out. This is literally no different than how an author is compensated from a regular library.
If the bolded comments above are true for the Open Library, they must also be true for a regular library. Yet, I guarantee that not a single author chooses not to write because their books are available in a library to be lent out for free.
This is the part that really destroys me in this ruling. It takes a completely nonsensical claim and insists that it’s true. It’s fantasyland thinking and it effectively puts the knife in the back of libraries.
So, a real shot across the bow for public libraries in general. Big Publishing has already lit their torches and they know how flammable paper is in general. Public interest be damned, if they can squeeze another dollar out of the public, they’ll do anything and everything to ensure that this happens. Consideration for the consequences of those actions are for losers, after all.
Much like Mike Masnick says in his piece, we’ve had public libraries around the world for hundreds, if not, thousands of years now. Authors have not collectively seen the existence of those libraries and concluded that there is no reason to write. Books continue to get published to this day. The public library system isn’t killing the publishing industry. Never had, never will. Yet, that won’t stop the Jerkules MBA’s running the publishing sector from trying. For now, they have gotten at least one court to agree with them that torching libraries is in the public interest. A tragic state of affairs to say the least.
