7 minute read
Legally Speaking
LEGAL ISSUES
Section Editors: Bruce Strauch (Retired, The Citadel) <bruce.strauch@gmail.com> Jack Montgomery (Georgia Southern University) <jmontgomery@georgiasouthern.edu>
Legally Speaking — Stealing? I think not.
Column Editor: Ashley Krenelka Chase (Assistant Professor of Law, Stetson University College of Law) <akrenelk@law.stetson.edu>
Libraries are not — and have never been — immune from the ludicrous claims of patrons, boards of directors, and publishers who seek to control what we do and how we do it. Particularly now, when the actions of libraries and librarians are under the microscope by local governments seeking to censor both publications and perfectly acceptable speech, it is more important than ever that libraries provide access to materials that patrons need to understand the world around them.
That information, of course, should also be accessible online when it can be, to reach patrons who are unable to access the physical resource of a library. The COVID-19 pandemic has taught us that not everyone is comfortable coming into public spaces when a virus is ravaging our communities, and that the internet can serve as an excellent replacement location for library materials that users are eager to access.
That is probably one of the least controversial things I could say, particularly to librarians. Apparently, however, the idea that materials should be accessible online to users who need them is outrageous, “mass scale copyright infringement” according to Hachette, Penguin Random House, HarperCollins, and Wiley.1
While I think even those bigwigs would agree that eBook lending is a great way to put electronic materials in the hands of library users, apparently only electronic materials that are subject to outrageous digital rights management schemes created by these publishers count. The aforementioned publishers stated that outright in July court filings against the Internet Archive’s Open Library, because the Internet Archive dared to scan paper copies of books — books they have every right to lend under the first sale doctrine — and lend them as eBooks through their online platform, a practice called Controlled Digital Lending. While I am certain we all know about the first sale doctrine, for the purposes of understanding how outrageous these claims are, I think it’s important to provide a definition. The first sale doctrine enables copyrighted materials to be distributed, allowing for those who purchase material first — the first sale — to be distributed after that initial purchase. The first sale doctrine applies exclusively to the distribution right of copyrighted materials (and not to other rights that fall under copyright, like performance, derivative works, etc.), and allows for libraries to distribute (i.e., lend) the materials they have rightfully purchased to patrons, without fear of being charged with violating the rights of the original copyright holder.
The process of controlled digital lending mimics the lending of a paper book almost exactly, except the process takes place electronically. The Internet Archive purchases a book for their collection. Legal. They scan the book. Legal (first sale doctrine! It’s their copy and they’ll scan if they want to, no distribution happening here!). They lend the print book. Legal. The print is returned. Legal. They lend the scanned, electronic copy of the print book to a single patron while the print book remains out of circulation, in the possession of the library. ILLEGAL. MASSIVE PROBLEM! THEFT!
Does this make sense to any of us who actually care about putting books into the hands of our patrons? A print book is, theoretically, the same as an eBook. Only when we purchase print books for our collections, we don’t sign licensing deals that limit the ways in which we lend those print books; we don’t expose ourselves to the capitalist nightmare that is digital rights management. We don’t fear the copyright gods raining hellfire upon us, because we know that the lending we do of print books falls squarely within the first sale doctrine. So why should we approach electronic materials any differently? Personally, I have never understood the desire to license and lend eBooks. Academic law libraries (where my career was focused for a decade) are admittedly behind the times in terms of lending eBooks, but I don’t think that’s a bad thing. The latest filings from these publishing giants solidifies my stance: libraries should move away from lending eBooks lest we find ourselves in a situation where publishers are calling even more of the shots than they do today. And in this case between the Internet Archive and the titans of publishing, libraries certainly seem set up for a disastrous situation in which we are being told the best way to lend materials by the people who have the furthest thing from our patrons’ best interests at heart.
I can shout from the rooftops about cancelling eBook agreements, the need for libraries to take back control of their collections and how materials are loaned to patrons, but that stance is completely divorced from the economic and social realities in which libraries operate. We need eBooks, not only because of limitations on physical space but also because our patrons like them. We also need print books. Print materials are essential to disperse knowledge to those who don’t have access to a computer, the tactile medium is preferred by some readers, and who doesn’t love to see a child holding a book for the first time?
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And librarians shouldn’t have to be copyright experts. Asking individual librarians at libraries around the country to understand how much of a book they can scan and send to a patron who has no way of visiting the library is ridiculous, particularly if the book can be “checked out” to the patron, who is then provided a scanned copy, and no other patrons can access either the scanned or print copy during the lending period. We, as librarians, have to fight to serve our patrons in the ways that are best for them. While I don’t advocate for breaking the law in any instance, I do advocate for fighting back against publishers who are only interested in limiting distribution rights of materials to line their own pockets. Of course there are benefits to authors, too, in limiting the ways in which libraries purchase and lend books. Sandra Cisneros filed a declaration in the aforementioned case detailing the ways in which she is economically harmed by the Internet Archive using Controlled Digital Lending to check out materials to patrons.2 But I do not believe that libraries are going to go out and scan every book in their collection in order to be able to utilize a Controlled Digital Lending model. Nor do I believe that libraries are going to stop purchasing print materials because there will be scans of those materials available.
It is clear that authors and publishers, alike, are only worried about the impact this is going to have on the eBook market. It seems they’ve forgotten that eBooks are just books that libraries rent, instead of owning them, thereby allowing publishers to completely degrade the first sale doctrine and its importance in distributing copyrighted material. Publishers and the authors siding with them in the battle over controlled digital lending are, in essence, arguing that they don’t want any library to own these materials, and they want to force libraries into renting materials out so those same materials can be, in essence, sublet to patrons, while still in complete control of the publisher.
Controlled digital lending is not theft any more than licensing eBooks from a publisher is purchasing those books. The actions of Hachette, Penguin Random House, HarperCollins, and Wiley in this lawsuit demonstrate that their only concern is not in the distribution of copyrighted materials to readers, but in the control of those materials for the long-term. Libraries have to fight back against being nothing more than landlords who are subletting publisher material. We need to take ownership over our ownership of print and materials that are properly scanned under the first sale doctrine. Controlled digital lending is not theft ... but we’ll see what the courts say.
Endnotes
1. https://www.courtlistener.com/docket/17211300/ hachette-book-group-inc-v-internet-archive/ 2. https://publishers.org/wp-content/uploads/2022/07/gov. uscourts.nysd_.537900.89.0.pdf
