In Defense of the Open Library
You can support the Internet Archive and authors at the same time
Introduction
I would like to amend my previous criticism of the Internet Archive (IA). While I praised the IA for preserving invaluable artifacts, such as old websites, Grateful Dead concerts, and Balinese writings, I criticized its Open Library (OL) for not acquiring official licenses for ebooks which are still in-print and under copyright. For those who don’t know, the OL, co-founded by Aaron Swartz, Brewster Kahle, and Rebecca Malamud, aims to create a universal library which anyone on the internet can access. They do this through a process known as controlled-digital-lending (CDL), which is when libraries scan a book for their own ebooks, and allows one user at a time to borrow said ebook for a limited period. If the ebook is checked out by another patron, you can join a waitlist to borrow it as soon as it is returned. While the IA does purchase many of the books that it loans, CDL allows them to avoid buying official ebook licenses, which publishers feel cheats them and authors out of royalties.
The IA is in the middle of a lawsuit with the four big publishing houses, Penguin Random House, John Wiley & Sons, Hachette Book Group, and HarperCollins, over its National Emergency Library (NEL) during the height of the COVID-19 pandemic. The NEL was meant to ensure that readers would have access to digital texts amidst the lock-downs, when many libraries would be closed. To do this, the NEL suspended waitlists for books, allowing multiple patrons to check out a single ebook at the same time.
While the NEL did receive praise from many universities and libraries, it also received criticism from authors on Twitter, like Colson Whitehead, Chuck Wendig, Alexander Chee, and N.K. Jemisin. The four aforementioned publishers saw the NEL as a massive violation of copyright, writing in their lawsuit:
“Its goal of creating digital copies of books and providing them to whomever wants to download them reflects a profound misunderstanding of the costs of creating books, a profound lack of respect for the many contributors involved in the publication process, and a profound disregard of the boundaries and balance of core copyright principles.”
I agree. The NEL, while well-intentioned, was a reckless decision that went beyond the restrictions of CDL. It also did some damage to the idea that digital lending would be “controlled.” Now publishers have to worry about libraries virtually giving away unlicensed ebooks on a whim. In response to the publisher’s lawsuit, the IA announced that they were ending the NEL on June 16th, 2020, two weeks before its scheduled end date of June 30th, 2020. They also asked the publishers to call off their lawsuit in return, but the publishers did not.
If the lawsuit was simply focused on holding IA accountable for their NEL stunt, I’d be more favorable to it. An ideal ruling, in my mind, would be a declaration against unrestricted digital lending, and a minor fine for the copyrights violated. The ruling should also take into consideration that NEL was adopted during lockdown, and should provide guidance to libraries for future emergencies. The aim of this lawsuit, however, goes far beyond that, hoping to shutter the OL, and by extension, the entire concept of CDL altogether.
The publishers have made their intentions quite clear, as the Association of American Publishers (AAP) wrote in a press release, “The suit asks the Court to enjoin IA’s mass scanning, public display, and distribution of entire literary works, which it offers to the public at large through global-facing businesses coined ‘Open Library’ and ‘National Emergency Library.’” Douglas Preston, the president of the Authors Guild (AG), an writer’s organization supportive of the lawsuit, seems to see no difference between the unrestricted NEL and more measured OL, “Internet Archive’s wholesale scanning and posting of copyrighted books without the consent of authors, and without paying a dime, is piracy hidden behind a sanctimonious veil of progressivism.”
I want to briefly make the case for why the OL should not be shut down, why CDL should be defended, why OL isn’t to blame for poor authors, and why there are more productive ways to help authors out.
I. The Open Library provides books for everyone anywhere in the world. This is an immense public service.
“If libraries didn’t exist, we could never invent them now.”
“Promote, then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened.”
If the OL did not already exist, we would need to invent it. The concept of a universal digital library where anyone can access the world’s knowledge, is one which we should all be invested in. It may be one of the most important Internet achievements. An undisputed benefit to the welfare of humankind.
Imagine it. No matter where in the world you are, if you have Internet access, you can check into the library and engage with the world’s cultural knowledge. You can read books that your public library might not have, or come across forgotten texts which have long gone out-of-print. As a former member of the Unification Church, which I now consider to be authoritarian and bigoted, the OL has been a vital source of books on the group, such as Moonstruck (1979) and Bad Moon Rising (2008), which have long been out-of-print. As someone who also lives in Japan, the OL has been an invaluable source of texts in the English language. The digital library is also a boon to the disabled who can’t get out to the public library as easily as the able-bodied. The OL, in fact, has made one million books for the blind and dyslexic.
In the United States, many conservatives are waging cultural warfare against libraries and free speech, as part of a wider backlash against LGBT rights, racial justice, and liberalism in general. They mean to do this by trying to ban books from libraries and schools. In such an anti-intellectual environment, ensuring that everyone has access to banned books is a matter of high importance. The OL helps to guarantee readers that right.
While we’re on this topic, consider that Penguin Random House, a publisher in the lawsuit, requested that an ebook of Art Spiegelman’s Maus, a graphic novel about the Holocaust, be removed from the OL. They did this in response to consumer interest in the book due to its ban from the Tennessee school board. Chris Freeland, a librarian at the OL, was appalled: “By its own admission, to maximize profits, a Goliath of the publishing industry is forbidding our non-profit library from lending a banned book to our patrons: a real live digital book-burning.”
Indeed, should the publishers win this lawsuit, the level of control that they would wield over ebook collections should disturb us all.
II. The current ebook licensing system is terrible for libraries. Controlled-digital-lending is a reasonable alternative.
Libraries and publishers depend on one another. Publishers provide libraries with books, while libraries provide publishers with readers. These two entities, however, have fundamentally different purposes. The purpose of the publisher is to pay authors. The purpose of the library is to allow the public access to as many books as possible. The problem is that publishers also believe that libraries should be a major source of their revenue. This belief hurts the ability of libraries to provide public access for books.
Let me be clear, libraries should pay for their books. When it comes to physical books, public libraries pay a fee to own a copy. If the book ever becomes too old, they have to pay another fee to buy another copy. Ebooks, however, never become too old to use, so the publishers reasonably demand a higher fee for them. Author Sandra Cisneros, (whom I respect deeply), said in her support of the lawsuit that the OL, unlike “real libraries,” steals books, “The libraries that raised me paid for their books, they never stole them.”
On the contrary, every book digitized in the OL has been bought and paid for, either by the IA itself or by the patrons who donated them. The IA has recently bought books from the publishers PM Press and 11:11 Press. IA founder, Brewster Kahle, even wrote an open letter begging publishers to sell them more ebooks! The OL has also received donations from the Hamilton Public Library and the Marygrove College Library (which closed in 2019). If you regard donating books to libraries as theft, then the whole public library system is illegal. The OL only refuses to purchase ebook licenses which prevent them from owning the ebooks, because most libraries can’t always afford to renew them.
Libraries pay between $20 to $65 per ebook license, with an industry average of $40. Most libraries can only loan out the ebook 26 or 52 times before having to re-purchase the license. Librarian Carmi Parker says that after the major publishers capped licenses at 24 months in 2018, prices were not lowered, and the result is that libraries are buying fewer ebooks: “We can’t even remotely afford to re-license everything that we licensed.” This has led to longer waitlists for ebooks, as the average wait time for many libraries can be two months. This means fewer ebooks and fewer patrons able to read them. In 2020, author Maria Bustillos wrote in The New Republic that this policy has even extended to public education, with one school paying $27 per student for 12-month license to The Diary of Anne Frank.
Publishers are sometimes indifferent to shrinking library collections if it means they can make an extra buck. Amazon, who have produced books by Mindy Kaling, Michael Pollan, and Dr. Ruth, once refused to sell their ebooks to libraries until changing their policy in May 2021. Also in that same year, Seuss Enterprises ceased the publication of six Dr. Seuss books, effectively preventing libraries from ever getting ebook versions. In 2022, John Wiley and Sons, one of the publishers suing the IA, removed 1,380 ebooks from college libraries, before temporarily reinstating them after public pressure. The publishers suing the IA have even admitted that of the millions of ebooks on the OL, they have only made about 1% available to public libraries. While some publishers justify these restrictive measures on the claim that libraries are “cannibalizing sales,” the Washington Post noted in 2019 that there was no evidence that the recent decline in ebook sales was in any way due to libraries.
The lawsuit is about denying libraries the right to digital ownership, turning them into a streaming service for books, with a title vanishing every couple of months. As Bustillos warned in The Nation, if the publishers are successful, “libraries will no longer be independent entities, free to make their own decisions about what to lend; they’ll be limited to whatever publishers want to offer — or not offer.”
The primary burden of paying authors should fall on publishers, not libraries. Believing otherwise can hurt library services. The question is, are the major publishers suing the IA paying their authors, and if not, do they have the resources to do so?
III. The Open Library is not to blame for impoverished writers. This lawsuit will not end their poverty.
Many authors, even those who have best-sellers under their belt, are still struggling to make ends meet. In 2018, the AG found that the median pay for U.S. authors declined 42% since 2009. The median author income at that time was a paltry $6,080. For context, the median income was $12,850 in 2007. Even full-time writers only made a median $20,300, which is below the U.S. poverty line for families of three. The AG also found a 21% decline in book income. This decline in author revenue, however, was not shared by their publishers, who are richer than ever before!
In the first half of 2019, the year before the lawsuit, the U.S. publishing industry received $6 billion in revenues! An increase of 6.9% from 2018. That same year, the U.S. publishing industry grew by an overall 2%. Also in 2019, Penguin Random House, one of the publishers in the lawsuit, recorded its highest first half in 12 years! In 2021, NPD BookScan found that U.S. print book sales grew by 9%, with 825.7 million units sold. These were the highest print sales BookScan had recorded since they began data tracking in 2004.
While print book sales did decline by 4.8% over the course of 2022, this may correspond more with the rise in inflation than with the OL’s lending program. Keep in mind that the OL has been in operation since 2006. The growth of the OL has not corresponded to a decline in publisher revenue, or even ebook sales, which have always been erratic. It appears to me that the decline in U.S. author incomes has less to do with the OL, and more to do with how publishers are distributing their money.
Consider diversity. In 2020, the hashtag #PublishingPaidMe went viral on Twitter, where authors revealed their advances, and highlighted a significant pay gap between black and non-black writers. The same year, the New York Times found that 85% of acquisitions editors were white and 90% of books were published by white authors. This inequality surely isn’t helped by the seven figure advances that publishers pay to celebrities to ghostwrite memoirs and cobble together children’s books. Professional children’s authors, meanwhile, have long complained that prioritizing celebrity books is crowding them out of publicity and resources.
This unfairness would have been further exacerbated by the attempted merger between Penguin Random House and Simon and Schuster. Penguin Random House, who claims that the OL is bleeding their authors dry, had $2.2 billion at the ready to acquire Simon and Schuster. AG president, Douglas Preston, spoke out against the merger, fearing that it would hurt competition, shrink diversity in literature, and lower author advances. As did author Stephen King, who warned, “The more the publishers consolidate, the harder it is for indie publishers to survive.” A U.S. federal judge, thankfully, blocked the merger, but I don’t doubt that the publishers may try this sort of thing again.
While libraries can provide books for free, they haven’t stopped readers from buying books. Many times, people purchase books which they have borrowed from the library because they liked what they read. Libraries can also introduce readers to authors they otherwise might not have known about. Indeed, a 2011 survey in Library Journal found that over 50% of library patrons buy books from authors they first read at the library. The OL serves a similar purpose. In fact, for each book page, they have a link to sites where you can purchase the book! If a reader really wanted to steal a book, they’d simply torrent one from one of many pirate sites.
Furthermore, after looking through the publisher’s list of authors who are supposedly losing money to the OL, I noted four curious names: C.S. Lewis, Zora Neale Thurston, Laura Ingalls Wilder, and Sylvia Plath. While the works of these writers are available on OL, they are also available for free in Canada, where they are already in the public domain! The estates of these writers are losing more royalties to Canadians than to OL patrons!
In closing, indulge me in a thought experiment. Imagine you are one of the authors employed by one of the big publishers suing the IA. Imagine that, despite being moderately successful, you are still in dire straits. Whose fault is this? Is it the website that allows one person at a time borrow your book for a few days? Or is it your multi-million dollar publisher who determines your royalties? Who has your money?
The publishers have spent a lot of money on this lawsuit. I wonder, how much of this money could have been used to pay the authors they claim to care so much about? The plain fact is that the OL is far from an existential threat to publishing, and that writers can thrive alongside CDL if we are willing to put in the effort. (For details, see Point V)
In fact, there are authors who agree with me.
IV. Many authors do not support the lawsuit.
“Our voice is an important one in this case because the publishers purport to represent the interests of authors in general, when a vast majority of working authors do not publish with these publishers or necessarily share their interests. Authors are not a monolith, and while not all authors support CDL, many see it as a valuable way to achieve their dissemination goals.”
“I think a legal suit over something that was obviously a well-intentioned effort to make things easier on people in the early days of lockdown is wrong.”
- Neil Gaiman, author of Sandman, Coraline, and The Ocean at the End of the Lane.
It is certainly true that a lot of author’s organizations support the lawsuit, such as The Authors Guild (AG), The Society of Authors (SOA), The Romance Writers of America (RWA), the National Writers Union (NWU), and the Western Writers of America (WWA), etc. However, there are many others who have spoken out in the OL’s defense. It is these voices whom I wish to highlight to show that the publishers are not representing the wills of many writers in this lawsuit.
Consider the Authors Alliance (AA), an author’s organization who has long supported CDL. While they have avoided taking a position on the NEL, they emphasized that the OL’s use of CDL is essential for keeping books accessible in the digital age:
“Authors Alliance has long been a supporter of the CDL model, which helps authors share their creations with readers, promotes the ongoing progress of knowledge, and advances the public good — objectives that are consistent with the mission of Authors Alliance. Several of our members have spoken out in favor of the model. CDL is particularly beneficial for authors whose works are out of print or otherwise commercially unavailable: In the absence of digitizing and lending these books, many would simply be inaccessible to readers. The CDL model is a boon to the authors of these and other books, allowing them to find new audiences online.”
Author and Slate columnist, Tom Scocca, who wrote Beijing Welcomes You: Unveiling The Capital City of the Future, defended the OL:
“But practically, the idea is the idea of the library book. A single copy — bought and paid for — shared with one person at a time, and then returned to the shelf. The distribution may be virtual and seemingly unreal, but it behaves like a solid item. It behaves more like a solid item, in fact, than many provisionally available movies or texts on the consumer market, which act as your personal property for only as long as the underlying licensing agreement between the rights-holder and the seller lasts. That sort of dissolving culture isn’t a renewable revenue source, it’s a path to scarcity and amnesia.”
Furthermore, several authors wrote an open letter titled, “In Solidarity With Libraries,” criticizing the lawsuit against the OL and affirmed the right of libraries to own books. The letter was sponsored by Fight for the Future, a non-profit digital rights group. The list of authors and artists on the letter was wide and varied: Neil Gaiman, Naomi Klein, Cory Doctorow, Chuck Wendig, Daniel Ellsberg, Lawrence Lessig, Mike Masnick, Mona Eltahawy, Mike Godwin, Laurie Penny, Alyssa Milano, Tom Morello, Lily Wachowski, etc. The open letter stated:
“We fear a future where libraries are reduced to a sort of Netflix or Spotify for books, from which publishers demand exorbitant licensing fees in perpetuity while unaccountable vendors force the spread of disinformation and hate for profit. Publishers must balance profits for the most prominent authors and shareholders with the right of the public to free, unsurveilled access to knowledge and information — as well as the right of emerging authors to be collected, preserved, and discovered.”
The letter was received rather negatively by many writer’s organizations, such as the AG, SOC, etc, who wrote a joint statement claiming: “In speaking with authors who signed this letter because they support public libraries, as we do, they feel misled about the purpose of this letter.” As of this writing, the only signer of the hundreds to publicly disavow the letter was Lemony Snicket, (though Mike Masnick at Techdirt suggests that he may have been pressured by his publisher to do so).
In any case, in response to the joint statement, Fight for the Future brought up quotes from some authors who signed the letter, to prove that they were not being misled in the slightest (emphasis added):
“Author Elizabeth Kate Switaj said when signing: “My most recently published book is on the Internet Archive — and that delights me.” Dan Gillmor said: “Big Publishing would outlaw public libraries if it could — or at least make it impossible for libraries to buy and lend books as they have traditionally done, to enormous public benefit — and its campaign against the Internet Archive is a step toward that goal.” Sasha Costanza-Cook called publisher’s actions against the Internet Archive “absolutely shameful” and Laura Gibbs said “it’s the library I use most, and I am proud to see my books there.””
Is anyone seriously going to accuse Neil Gaiman of not caring about authors? Naomi Klein of not caring about the impoverished? Cory Doctorow of not caring about the rights of creators? The idea that defending the OL makes you anti-author assumes that authors are all of one mind on how best to lend their books to libraries. And they are not.
V. There are more productive ways of helping authors at this time
If the lawsuit is successful, the OL is shut down, and CDL is banned, I am doubtful that the material situation of authors will change all that much. Writing has always been a tricky pursuit, especially for those who want to do it full-time. There are plenty of great writers, from Franz Kafka to Bram Stoker, who never made enough to quit their day jobs. This isn’t to say that it’s wrong for writers to want to work full-time, but that there are problems inherent to the profession which the OL is hardly responsible for. That being said, to show that I do, in fact, want writers to make more money, I have a list of four suggestions that will probably do more for writers than this lawsuit.
I. Buy books and review books.
The best way to support authors is to buy their books, and an even better way is to read them. If you buy a book, you can be assured that some of your money is going directly to the writer. If you read and review the book online, or recommend it to your friends, you are helping to bring attention to it. These are small things, but anyone can do them and they go a long way.
I am a proud member of the OL. I also own boxes full of books which I have bought with my own money. I also buy at least one ebook a month on Kindle. I have also reviewed several books on my blog, like My Best Friend’s Exorcism, Dinotopia, and Silence. I have also interviewed various authors on my blog to promote their work, like Grady Hendrix, James Gurney, and Lisa Kohn. Some will say that you cannot support both authors and the OL. I am here to tell you that you can and that they are wrong.
II. Pass a Public Lending Right
A Public Lending Right (PLR) would help compensate authors for potential losses due to their books being lent by public libraries. The PLR would be funded by the government, not libraries, and authors would be paid in either two ways. The “payment-per-loan” method gives authors payments for how often their books are lent, while the “stock-or-title-count” method pays authors for how many copies of their books are on the library shelves. The PLR has been around since 1946 and is currently on the books in 35 countries. A PLR has the potential to heal the tensions between publishers and libraries, as publishers would now be incentivized to get their books into as many libraries as possible. The best part is that writers would be making money off of having their books at the OL, too. The AG is currently advocating for a PLR in the U.S., and they have my support.
III. Amend the National Labor Relations Act, which will allow publishers and authors to negotiate collectively
The AG is also advocating for “collective bargaining” for authors. They note that in the U.S., authors are defined as “independent contractors” and not “employees.” This prevents them from collectively negotiating contracts with their publishers, contracts which can often be quite unfair, with low royalty rates for authors. The AG has worked with authors for many years to try and fight for better contracts, but they have found it quite difficult, especially with so many authors in need of help. This is why they want the U.S. to add an amendment to the National Labor Relations Act (NLRA), which would allow authors to negotiate collectively with publishers for better contracts. In fact, AG draws a clear line between the recent decline in author’s incomes, and their inability to collectively bargain with publishers:
“The fundamental cause of this decline is the virtually non-existent bargaining power of writers in the marketplace. As publishers respond to downstream pressures from Amazon — which is squeezing more than its fair share out of the industry — authors are increasingly facing the consequences. Collective bargaining would allow them to say no to certain terms, demand better pay, and boycott bad actors, and in turn put sufficient pressure on the publishing industry as a whole to make the ecosystem work for everyone and not just the big corporations.”
IV. Piracy insurance for mid-list writers and indie publishers
Ebook piracy is not going away, but it has not always been harmless. AG found in 2019 that U.S. publishers were losing $300 million a year to e-book piracy. For the record, I believe that ebook piracy is justified in cases where the book is out-of-print, or otherwise extremely rare. To this end, some level of piracy should be allowed to exist.
However, I draw the line at stealing from mid-list authors who are working either for indie or small publishers. These losses could do great damage to their careers, especially those with debuts. The help keep these writers and their publishers afloat, I suggest that they have the option of receiving piracy insurance from the government or a private company, provided that they can prove e-book piracy resulted in existential losses which threatened either the writer’s book contract, or the publisher’s ability to operate.
Conclusion
There is more than enough space in the world for authors, publishers, and librarians to share and prosper. We can have well-paid authors and a universal library that ensures no books are lost or censored. I hope that this lawsuit comes down on the side of accessibility, preservation, and the spread of knowledge. If the big publishers are so concerned about the meager earnings of their writers, then they should look inwards, not restrict the future of digital libraries for a few extra pennies.
This lawsuit will not be a productive means of reconciling the affected parties. Through this essay I have attempted to lay out a more helpful path forward, though it’s up to the publishers if they wish to pursue it.
