The Agony and the Ecstasy: A Response to PublicKnowledge’s Call to Arms in Defense of the Internet Archive
by Neil Turkewitz
PublicKnowledge recently posted a call to arms asking supporters to “Tell Congress to Let Libraries Fight Back.” Fight back against what you ask? Interestingly enough, it turns out that the “fight” to which PublicKnowledge is referring is the ability to make copies of books and to distribute them online without paying authors for the privilege. Yes, you read that right. PublicKnowledge thinks it’s a miscarriage of justice for libraries to have to pay authors to distribute their books online. Their reasoning? Presumably because in the physical universe, once a library acquires a copy of a book, it may provide that book to members of the public without paying any additional money to the author or publisher. Now of course, a library can not, except in the very limited circumstances set out in Section 108 of the Copyright law, make copies of the book for its customers, but thanks to a doctrine known as “first sale” or “exhaustion,” the lawful owner of a copy of a book may thereafter resell or lend out that copy.
So theoretically, PublicKnowledge wants to replicate that in the electronic domain because everything works precisely the same in the physical and electronic realms, right? Actually, come to think about that, perhaps that’s not such a good operating premise, and indeed, there are a score of differences between these environments — differences which are reflected in law and practice based on the correct observation of the unique challenges (and opportunities) of the digital environment.
And of course, there are common sense distinctions that are inconvenient for PublicKnowledge’s narrative that they hope you will not consider — material differences from the user standpoint by which e-lending presents much more of an unfair competition issue for authors and publishers than traditional book-lending. With the rise of e-books as a principal mode of payment for authors, e-lending poses a direct challenge given the lack of friction in either mode of delivery. In short, e-lending is not significantly different from the sale of e-books, and the relationship between them must be carefully managed to avoid distortions that would undermine authors. There are very material differences between the physical and electronic marketplaces that need to be borne in mind in considering appropriate and evolving norms, and which underlie the understanding that the application of “digital exhaustion” would undermine the legitimate expectations of parties and would further undermine the already precarious position of authors seeking to transition to the digital marketplace.
With that in mind, let’s look at the PublicKnowledge call to arms in more detail. They open with drama and tension appropriate to their desire to replace reason with passion. They write: “Today’s libraries must meet surging demand among their communities for access to ebooks, audiobooks, and other materials. It used to be the case that libraries could just purchase more copies of in-demand titles to meet their users’ needs. Today, libraries are kneecapped by extortionate ebook pricing, restrictive use terms, digital products that ‘self-destruct’ and force libraries to re-purchase them, and publishers who sue libraries that try to make their works available digitally.”
I am tempted to just leave it there and allow you to make your own judgments without any further encouragement from me…but of course, my sense of duty and outrage do not permit such circumspection. I want to focus on two elements:
1-extortionate book pricing. How exactly does one define extortionate pricing in a market where price doesn’t relate to the physical costs of production? PublicKnowledge seems to think they know, and mostly it’s anything more than zero given their views of artificial scarcity and non-rivalrous goods. At most, they think the price for a “good” — the e-book, should be the same for any buyer, regardless of whether that buyer is an individual buying for his or her own reading pleasure, or an entity buying in order to satisfy the demands of multiple readers. Later in their manifesto, PublicKnowledge refers to the price discrimination as evidence of some kind of avaricious wrongdoing, but are these two users really buying the same good/service? Of course they aren’t, and markets generally recognize — indeed, are dependent on, price discrimination in order to operate rationally through diverse business models. And it goes without saying that the copyright law makes distinctions on the basis of the identity of the user and whether the use is personal or public — even for precisely the same “act” with respect to the work.
2- publishers who sue libraries that try to make their works available digitally. Okay, I had to read that a few times to make sure I wasn’t missing something. PublicKnowledge actually suggests that publishers are suing libraries that try to make their works available digitally? So much deception, so little time. This of course is a reference to the publishers’ lawsuit against the Internet Archive. But as anyone who’s been following this misadventure knows, the lawsuit is largely predicated on the reproduction of books — without authorization, and the subsequent distribution of such unauthorized copies via digital means. Publishers are encouraging the digital distribution of books. It’s not only their future, it’s their present, and publishers aren’t seeking to stop the development of technology as intimated by PublicKnowledge’s fiery rhetoric. They have one goal and one goal only — to allow a digital marketplace to develop without unfair competition.
Just a few additional observations on the PK manifesto.
“Increasingly, libraries have begun making and lending out digital versions of physical works in their collections — a practice called Controlled Digital Lending, or CDL. CDL is a powerful tool to bridge the gap between print and electronic resources.”
CDL is the invention of Brewster Kahle and the Internet Archive. While public information about the use of CDL by other libraries is, as far as I can tell, unavailable, all available literature suggests that its use is limited. There are an estimated 117,000 libraries in America. How many are employing CDL? I sure hope only a tiny percentage. Moreover, from a legal standpoint, widespread use would make CDL more legally suspect, not less so. At least PublicKnowledge acknowledges that making CDL legal requires an act of Congress. They write: “We need legislation that ensures that libraries are free to buy ebooks and other electronic materials and lend them out, just as they can with physical media. This would allow libraries to continue functioning as they always have, but with a necessary update for today’s needs and technology, so they can meet their mission of making books available for all.”
Of course, the flip side of this is that CDL therefore can not be justified under fair use as argued by some other parties, and as the Internet Archive is likely to argue in litigation. Widespread use would suggest a conflict with a normal exploitation of the work, therefore incompatible with fair use and our international obligations under the Berne Convention and TRIPS. It is also useful to highlight another aspect of scale — while there are, as noted above, an estimated 117,000 libraries, there are only about 20,000 bookstores. One of the key requirements of any exception to copyright, like fair use, is that it apply only to “certain special cases.” When the “special cases” outnumber the ordinary cases by 600 percent, one might naturally wonder whether the relevant criterion has been met. For further analysis of the ill-fit of fair use to CDL, I recommend the excellent analysis by the Copyright Office (“Here, the complete text of books has been reproduced and posted in digital format without adding anything new to the works, or providing the type of search functionality that has been deemed transformative in other digitization cases.”) and the detailed examination by copyright expert, Steve Tepp.
PublicKnowledge closes their petition with an emotional plea that continues the assault on our senses: “The switch to digital copies shouldn’t leave libraries behind, and shouldn’t make libraries spend more and more just to get the same access to works they have always enjoyed.” But this is the straw man of straw men. Does anyone think that libraries should be left behind? They perform an essential public role in advancing education and fueling a love of reading. It is fair to assume that authors and publishers have an appreciation for the role of libraries that exceeds that of the average citizen. For authors, libraries are not a political tool in an ideological battle but an essential part of the broader ecosystem around literature. And of course, libraries aren’t being left behind — publishers are engaged in the licensing of e-books to libraries that simultaneously expands access and sustains authors.
PublicKnowledge wants you to forget about authors and to think only about publishers, as if authors were unaffected third parties. As I have written elsewhere, this is premised on a theory that it’s possible to love books and hate authors. That makes about as much sense as CDL, which is to say, not much.
