Publishers Want to End How Libraries Lend Books Online

A court decision could limit how you access e-books from the library.

When the pandemic began and schools and libraries around the country were forced to close their doors, teachers and librarians were at a loss over how to get digital books into the hands of young readers and their families.

The problem was so drastic that the Internet Archive (IA), a nonprofit digital library, declared a National Emergency Library (NEL) lending program. With more than a million digital books in its Open Library collection, the IA temporarily suspended its usual limit on lending digital copies one at a time during this unprecedented period.

While the move was heralded by many readers, schools, and libraries, others weren’t so happy. Several well-known authors blasted the program as “piracy.” Then, two months after it began, Hachette Book Group, HarperCollins, Penguin Random House, and John Wiley & Sons sued the IA, alleging “willful mass copyright infringement.”

Now over two-and-a-half years later, arguments have been fully briefed in the district court, but what began as a dispute over the NEL has grown into a much more complex fight over copyright law, the lending of digital books, and the future of libraries.

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Digital Collections and Lending

When it comes to physical books, copyright laws are relatively straightforward. Libraries purchase a book and lend it to patrons one at a time. But with digital copies, libraries usually rent e-books from publishers, lending them out a few dozen times before they have to renew licenses which can cost upwards of four to five times the amount of buying the book.

But the IA and other libraries have tried a different tack by buying and scanning copies of books to lend out to patrons one at a time through a model called Controlled Digital Lending (CDL).

What has become clear during this lawsuit, according to IA policy counsel Peter Routhier, is that publishers want CDL as a whole declared illegal. Moreso, Routhier writes that the lawsuit shows “publishers will continue to sue libraries over digital practices that were long considered fair uses in the physical world—even if they are done on a nonprofit basis with no measurable economic harm.”

In the current case, publishers argue that digital lending harms markets they claim to own and that CDL is not a fair use under copyright law. But library advocates argue that behind their argument of copyright infringement, publishers are simply trying to increase their profits while wresting control of the use of digital books away from libraries.

As Kyle K. Courtney, chair of Library Futures, argues, CDL is “not some form of library-sanctioned piracy,” but expressly based in copyright law, no different than lending a print book, while also offering the benefit of “broadening access to the books that library systems spend billions of dollars to collect and maintain for the public,” including out-of-print books that lack e-book licenses.

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The Rights of Libraries

While libraries have tried to keep up with the growing demand for digital books, turning to a number of lending platforms like Libby and OverDrive, the high price of e-books can be a strain for any library, and even the most well-funded systems are struggling to keep up with demand.

That’s why many librarians believe lending digital books should be treated in the same way as physical books, and support for that belief has only grown since the lawsuit began, including from authors who originally opposed the NEL.

In an open letter, more than 300 authors organized by the digital rights advocacy group Fight for the Future said that publishers are “undermining the traditional rights of libraries to own and preserve books, intimidating libraries with lawsuits, and smearing librarians.”

Besides growing their e-book market and forcing libraries to pay heavy licensing fees, there is also a fear that publishers could gain more power in restricting access to information as they see fit, with libraries ultimately becoming “beholden to the whims of third parties, who might decide not to carry books on queer rights, abortion or other sensitive political issues,” and books being chosen by corporations as opposed to communities.

“What libraries do is they buy, preserve and lend,” Brewster Kahle, the founder of the Internet Archive, said in an interview with The Washington Post. “Publishers are saying that you may not buy, you may not preserve and you may not lend except under exactly the circumstances that I tell you.”

Whatever the decision in Hatchette v. Internet Archive, it’s clear to libraries and their supporters they can’t sit idly by. Luckily, many are already starting to push back. Groups of librarians, scholars, and others have submitted an extraordinary number of friend of the court briefs highlighting what is at stake.

Copyright scholars Kenneth Crews, Kevin Smith, and the Harvard Law School Cyberlaw Clinic explained the importance of libraries in the digital world in their brief, writing:

“To remain relevant and to continue to democratize information access, libraries must meet patrons where they are; in the present day, that means the Internet. Libraries have nurtured our democracy from its inception and have changed alongside our society–evolving from private subscription models serving only the elite to free institutions that enrich citizens without regard to race, creed, gender, or socioeconomic status. As a cornerstone of democracies, libraries will always be the site of cultural struggle and ‘a crucible for a society that is constantly moving toward a more perfect union.’”

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