This Monday will be a significant day for US libraries in the American court system. I will be listening in.
Oral arguments will be heard in the law suit (which began in 2020) between the Internet Archive — the non-profit which runs the Wayback Machine and Openlibrary.org — and 3 of the nations top funded US mega-publisher:
https://www.eff.org/cases/hachette-v-internet-archive
The outcome of this case may impact (a) if and how US libraries will be allowed to exist in the digital future and (b) whether citizens will retain the same ownership rights when buying digital materials as they enjoyed with physical books, as the publishing world pressures a transition from buying to renting.
At the heart of the law suit are 2 questions:
- Will libraries be allowed to continue lending their legally acquired physical books online?
For the tens of millions of physical books which were never published in a digital format but that a library owns, can libraries digitize their books and digitally lend them in a controlled 1:1 way using a secure online lending system?
Millions of books from the 20th century are not only inaccessible to the digital world, but are also ostensibly unusable by those with print disabilities, like dyslexia and blindness. The law suit may determine whether millions of books will have a path to become digitally accessible. - Will libraries and customers be given the opportunity to purchase and own digital format books, retaining the same First Sale Doctrine rights they’ve had for more than a century buying in physical books? Or will publishers refuse and instead force libraries and customers to purchase digital leases with lesser rights.
Stay tuned & listen in on Monday:
https://blog.archive.org/2023/03/17/heres-how-to-participate-in-mondays-oral-arguments/
Lend your support:
https://www.battleforlibraries.com/
Background: Why is this law suit happening?
For more than a century, libraries have been legally acquiring books (through purchase and donation) and lending them to patrons. Speaking as a non-lawyer, one of several copyright statues that permits libraries and individuals to buy, lend, and re-sell the books they own is the First Sale Doctrine in 17 U.S.C. § 109.
The First Sale Doctrine works because it assumes libraries and individuals are allowed to buy books in the formats they need. Once they buy and own the book, they can lend it or resell it. But there’s a sneaky work-around — with digital books, publishers are choosing to never “sell” the book to customers or libraries, thus depriving them of their First Sale rights. Instead, when you buy an ebook on amazon or audible, you’re almost certainly “leasing” the book. The same is true for libraries who make their books available via Overdrive & Libby (subscription).
The way to think about this is like buying a house versus renting it. When you rent an apartment, you don’t get all the rights that an owner does, like the ability to have airbnb guests, to do repairs, to build equity. And this is highly problematic for a variety of reasons which impact millions of Americans in a variety of surprising ways, from accessibility to equitability:
https://mekarpeles.medium.com/content-landlords-and-the-eviction-of-american-libraries-18461f9d819a
In short, libraries want a way to lend their physical books which they’ve purchased, online — many which don’t have digital versions available for sale. Some publishers not only don’t want libraries to do this, they want to change the game so libraries are unable to own books moving forward, and can only lend materials under strict lease agreements which maximize publisher profit and restricts how libraries can equitably serve communities.
And this is why I will be listening on Monday with interest and believe strongly, as a moral imperative, that the Internet Archive and the scores of libraries across the country participating in Controlled Digital Lending & who are asking for publishers to sell digital books with First Sale Doctrine rights are on the right side of history.
Note: I run the Internet Archive’s Open Library program. I am writing this post as myself — a library-loving individual — on my weekend and not as a spokesperson for the Internet Archive. I am not a lawyer and this is why you should listen in on Monday to hear the facts first hand.
