For those of you who’ve been hiding beneath a rock these past few news cycles, the Internet Archive, the operators of the Internet Wayback Machine, was just handed a stunning defeat in a copyright feud with Hatchett, Random Penguin, and other major publishers.
Essentially, they had set up an internet lending library, and the publishers…didn’t take kindly to that.
As a book author, I have super-complicated and mixed feelings about this.
There are two different ways to think about this huge kerfluffle, morally and legally. On top of that, there’s a whole ’nother dimension to the problem that has nothing to do with books or copyright at all.
Buckle up, this will be a wild ride.
So first, let’s talk about what’s happening. The Internet Archive is trying to become a digital version of this:
Bibliothèque Mazarine, Paris by Remi Mathis & Marie-Lan Nguyen — CC BY-SA 3.0
Libraries purchase books, which they lend out to readers. Legally, they can do this because of something called the “first sale doctrine,” which says if I buy a book it’s mine and I can do what I want, including loaning, giving, or selling it to you without paying the publisher.
I’ve already paid the publisher when I bought it. That copy is now my property. I can’t make copies of it and loan, sell, or give away the copies, that would violate copyright law (which is literally the right to copy).
But I can loan, sell, or give away my only copy, because there’s one copy of it that the publisher was paid for. If I give it to you, I don’t have it any more.
Okay, so. When COVID hit, libraries all over the world closed. The Internet Archive said, hey waitaminnit, people can’t go to libraries. So how about this:
We will buy a book. We will then scan the book into an electronic copy. We can then lend that electronic copy to readers, but we will only lend it to one reader at a time. Once we lend it to someone, we won’t lend it to anyone else until that person has checked it back in with us, which erases it off that person’s computer.
It’s the same thing, right? We buy a book, we loan the book out, there’s only ever one copy on loan for each copy we buy. Just like a library.
Well, hang on, not so fast.
The legal situation around ebooks is a mess.
Publishers have long resented libraries and used-book stores. They quite like the idea that everyone who reads a book gives them money. They’d prefer to live in a world where if you buy a book, you are not allowed to give it sell it to someone else—if someone else wants to read it, they have to buy it too.
Bibliothèque Mazarine, Paris by Remi Mathis & Marie-Lan Nguyen — CC BY-SA 3.0
Publishers hate this
The first sale doctrine came about in 1908, after publishers sued a book store that was selling books for less money than the publishers wanted them to.
The Supreme Court held that publishers have intellectual property rights in books that pertain to copyright and distribution rights, but the distribution right is exhausted once a book is transferred.
In English, that means if I sell you a book you can’t make copies of it, but I can’t control what you do with that physical book you just bought—I can’t stop you from selling or giving it to someone else, nor control how much you sell it for.
Then ebooks came along. And ebooks aren’t physical things. And book publishers said “we aren’t selling you this ebook. You are giving us money for a license to read it. You don’t own anything. We aren’t selling this file to you. We still own it. The first sale doctrine doesn’t apply.”
If you buy a print book, you have the legal right to loan, give, or sell it to others.
If you “buy” an ebook, you are paying for a limited, revocable license to read it. You don’t own the ebook. The publisher can revoke your right to read it whenever they like. If Amazon decides to erase your Kindle tomorrow, they can do that. You have no right to loan, give, or sell that ebook to other people unless the publisher says you can.
So ebooks and print books are very different animals. You have a legally protected right to buy print books, start a library, and loan those physical objects to other people.
Ebooks? Nope. You have no right whatsoever to buy a bunch of ebooks and lend them out.
But wait! The Internet Archive is buying physical books!
Yup. But they’re not lending out those physical books. They’re scanning them, turning them into ebooks, and lending out the ebooks.
U.S. District Court Judge John G. Koeltl, who is overseeing the case, was quite blunt about this:
At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book.But no case or legal principle supports that notion. Every authority points the other direction.
And legally, he’s 100% right. No law, court finding, or interpretation suggests that if I buy a book I can transform it into another medium and then loan, give, or sell it on.
Copyright law allows fair use in the case of “transformative use,” which is use adds “new expression, meaning, or message” to the original work.” This is how movie and book critics can show clips or excerpts; their critique is “transformative use.”
The Internet Archive said “hey, the courts said that when Google scanned books, that was transformative use!” Judge Koeltl said “that was transformative use because Google scanned the books to make them searchable, but Google isn’t giving out scanned copies. You’re not doing anything new, you’re just scanning the books and giving them out.”
Legally, Judge Koeltl is 100% absolutely positively right.
The First Sale Doctrine applies quite narrowly to physical objects—physical copies of a book. All the laws about this are quite clear on that (though of course in 1908 nobody could imagine a book that wasn’t a physical thing, but still—the law as written is what it is).
Judge Koeltl also pointed out that publishers have no way to know if the Internet Archive is only loaning out as many copies as they have.
Libraries that loan ebooks do so with special permission of the publisher. This special permission comes with all kinds of strings attached, including paying fees and using encryption systems to make sure that if I copy a loaned ebook, then check it back in to the livrary, then restore the copy, I can’t read it—when I check it in, the library servers revoke my encryption keys.
The library servers also record and report the number of copies on loan, and this can be audited.
Internet Archive? Didn’t do any of that.
Morally, as a published author who makes a living writing, I think the Internet Archive is 100% absolutely positively right.
Their logic is sound. The spirit of the First Sale Doctrine clearly is intended to allow someone who’s purchased a book to loan it to others, even if the law as written came from a time before ebooks.
The Internet Archive argues, and I believe, that loaning books encourages sales. I know I personally have bought books I’ve borrowed.
But regardless of whether or not that’s true, if you’ve bought my book you should be able to loan it out.
Now, the Internet Archive’s copy control system may be problematic, but that’s engineering, not morality or law.
I sincerely hope the appellate court sees the intent of the law and agrees. I doubt they will. I think this is headed for the Supreme Court, and if I were a betting man I’d offer 80/30 odds the Internet Archive will lose.
The Internet Archive is facing an existential threat. If it loses on appeal—and I think it will—the damages will be staggering. Enough to bankrupt the Archive (which is a non-profit entity) hundreds of times over.
And that would be a disaster.
I don’t use the word “disaster” lightly. It would be a complete catastrophe. The Internet Archive houses the world’s only archive of the bulk of the World Wide Web.
They do a lot more, too. They are a repository for old games, flash videos, and so on that have otherwise been lost.
I fear that huge amounts of history will be gone forever if the Internet Archive ceases to be. The transition from the Industrial Age to the Information Age is a watershed moment in human history, as important as the transition from the Bronze Age to the Iron Age, but because digital records are ephemeral, incredibly important historical records are also incredibly fragile.
We are living, right now, in an important time in human civilization. The Internet Archive is literally the only existing record of important parts of it. If they cease to be and their archive is destroyed, it will be this century’s equivalent of the burning of the Library of Alexandria.