Hello, world! I* need your help signing and sharing this open letter, to defend the future of libraries:
On June 28 — in just 4 days — the appeal will be heard in the federal court case deciding the future of libraries. What’s at stake is: whether a library, like the Internet Archive, is allowed to lend the physical books they own, online using secure digital lending technology.
The books in question are books the library already physically owns and is allowed to lend out. The point in question is: how may these books be lent out?
As the world goes digital, will our government permit libraries to keep up with the times by making their existing collections of tens of millions of physical books useful and accessible to patrons over the Internet? Or will the courts vote to hold the public back from accessing the very books the public has funded?
*Disclosures: I am not a lawyer. I am employed by and run the Open Library at the non-profit Internet Archive. I am writing as myself, an advocate and lover of libraries, and not on behalf of my employer.
How did we get here?
Let’s quickly get up to speed: In 2020, during the height of the pandemic, thousands of libraries and schools across the globe were forced to shut their doors and lockdown, making it challenging for many students and the broader public to physically access the books they had been relying on.
During this lockdown period, publishers took the initiative to ask the federal courts to make it illegal for libraries to lend digital versions of their physical books, online. The lending mechanism libraries use to make physical books borrowable digitally follows similar strict protections and controls as physical libraries, just over the Internet — a practice known as Controlled Digital Lending (CDL: https://controlleddigitallending.org). CDL has been crucial for enabling patrons to exercise their rights to borrow and access library books in the ways they need.
What gives libraries the ability to lend books?
Since this case is ostensibly (I’m not a lawyer) about taking physical books and making them accessible digitally, it’s important to understand how and why libraries are able to lend these books in the first place.
In one sentence, the reason (again, I’m not a lawyer) US libraries can lend books is because they buy and own them. This sale comes with the rights of the First Sale Doctrine (17 U.S.C. § 109), which “provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. The right to distribute ends, however, once the owner has sold that particular copy”. This means when one purchases a book, one:
- is permitted to give — or even sell — that book to one’s friend. This is how 2nd-hand bookstores are able to work!
- may cut a book into many parts (please don’t!), and sell each part — such as the notorious biblioclast Otto Ege famously did
- can start a little library and lend one’s books to the public
But what happens if a library suddenly lost — or perhaps wasn’t given — the ability to buy and own books? What would that even mean? What indeed…
A Rug-Pull Moment
I think the world agrees that taking physical documents and making them digitally accessible is useful for discovery and access. Publishers get this. Libraries get this. Libraries want to make the books they have accessible to their patrons, and their patrons are increasingly turning to their screens for access. There would seem to be two options for libraries to take their collections digital:
- To buy and own ebooks that they can lend to their patrons
- To (at their own expense) find ways to make the millions of physical books they already own digitally accessible.
In the design process of transitioning from physical to digital books, publishers have found a clever way to systematically remove first sale doctrine rights from customers: by never offering books for sale that can be owned.
Publishers discovered that if they converted books from an ownership model to a lease model, and packaged them as “ebooks”, then libraries and other customers would have no choice but to use books exactly as the publishers demanded, including the common price-gouging practice of requiring libraries to subscribe to and repurchase many of the same titles year after year after year. Whereas libraries used to buy more books each year to grow their collection for public benefit, now they are forced to choose which fixed collection of books they can offer each year — often biasing towards new bestsellers and losing the ability to offer older materials their patrons have relied on them for. A major advantage of libraries is being able to ensure access of obscure materials that can’t be easily or affordably accessed by other means.
Today, nearly every ebook you access— whether on your kindle, audible, or through a library via the popular Libby app — is a lease that neither you nor your library own. Many customers think they own these books…
This is because publishers and vendors, like Amazon, typically design these leases to not seem like leases. For instance, vendors don’t typically require customers to pay for the same book multiple times (like they do for many libraries)… In part because customers would be outraged to be charged multiple times for the same book. And yet, publishers and vendors are already indirectly forcing the public to pay for the same book multiple times by charging libraries using public funds. And we’ll be next, if we let them.
If you still think you own that Kindle ebook, ask yourself: Can you lend your ebook to a friend? Can you sell your ebook to someone else once you’re done?
If you still don’t believe me, look at the recent case where Microsoft shut down their ebooks service, taking all customers’ ebooks with it. Or the many case where vendors updated and changed the contents of their ebooks, censoring or redacting without customers’ permission. 😬
Amazon would love to be able to charge more ebook subscriptions (and, like Netflix, it’s what Amazon already does for media like audiobooks and movies). My bet is publishers and Amazon will continue to squeeze customers by moving to that Netflix-style subscription model as much as the courts will let them. And that’s why we’re here.
If publishers decide to only sell books as leases, offer no ownership options, and prevent any way for libraries to take their physical books and make them accessible online, it’s the end of the road for libraries as we know them.
Based on Jennie Rose Halperin’s experience as Co-Chair of the National Information Standards Organization (NISO)’s Interoperable Standards for Controlled Digital Lending (CDL) Working Group, where publishers systematically waited until the last day for commenting on Controlled Digital Lending, after more than a year of good faith public engagement from other parties, it’s clear this is the direction we’re headed, unless the public acts.
A Pivotal Court Case for our Generation
This court case presents as “boring” — just like SOPA/CISPA did (the bill which threatened Internet privacy and net neutrality, and could have made millions vulnerable online) before Aaron Swartz presciently raised alarms about it, more than a decade ago. Aaron Swartz is also the co-founder of the Open Library project, the non-profit library website, run by the Internet Archive, which sits at the center of this case. I believe when Aaron co-founded the Open Library 15 years ago, he accurately predicted how crucial it would be for boring technology and a passionate community of generous software engineers and librarians to help libraries meet the evolving needs of modern-day patrons. Now that Aaron is no longer with us, it’s our task to carry his torch and fight for the “boring” cases that matter. That’s why I’ve spent the last 8 years working at the Internet Archive, why I continue to advocate for the Open Library, and why I fight for the future of libraries.
To date, as a result of [what I* believe to be] a tragically misguided decision from the lower courts, the Internet Archive has already been forced to take down more than 500,000 books from their lending library, pending the upcoming June 28th appeal. For this reason, I’m asking you, champions of public interest, to please lend your support: sign and share this open letter.
“We are at a critical moment in the history of culture. The lawsuit that the Internet Archive faces will determine whether the business model of culture is the commercial model alone, or whether there will continue to be a place for libraries, and therefore, continue to be a practice of assuring as much access to our past as is possible.” — Lawrence Lessig, Harvard Law
People: Why all of this matters
Millions of library patrons who are permitted to access physical library books simply can’t access to them in the ways they need, without the assistance of technology. Many patrons:
- Live unreasonably far from a local library that has the books they need
- Rely on basic research features, like the ability to search inside texts
- Benefit from accessibility and visibility features, like increasing font size and changeable fonts
- Favor read-aloud affordances to overcome accessibility challenges that many print books pose for those with visual or learning impairments
- Use web translations to access knowledge that isn’t comprehendible in their native language.
The importance of these affordances, and other forms of digital accessibility is something the US government has proactively acknowledged elsewhere, such as in the adoption of IDEA (21st Century Integrated Digital Experience Act), which requires many government services to modernize and prioritize their digital accessibility.
There are other critical reasons why it makes sense for libraries to make their physical items accessible to patrons securely online: millions of the books libraries physically own, especially those published between 1923 and 1980, can’t be accessed in any other way online and often can’t even be found for sale.
The Time to Act
Currently, without an overturn from the courts, more than 500,000 books that patrons had been borrowing online will remain inaccessible and many libraries will lose the ability to make their rich, thoughtfully compiled collections accessible to future generations who are turning to their screens for answers. If the court does not overturn the decision, much more could be at stake.
Please, take this final stand with me and sign & sharing this open letter. Let’s defend the future of libraries and #LetReadersRead.
