Copyright lawyer Michael Wolfe argues that the future of our libraries does not depend on the outcome of a US court case
The National Library sends books removed from its collections to the Internet Archive, a charitable library in the United States, to have them digitized and preserved in a way that the public purse cannot afford. Is it a scandal? Is this piracy?
In the surprisingly high and emotionally charged world of copyright law and policy, the word “piracy” is an old rule of trust – it is the claim that the interests of the copyright owner The authors put pressure on any use of their works that is not under the full control of the owner. “Alleged infringement” or “legally permissible but severely frowned upon by rights holders” simply do not convey the same sense of urgency or alarm. Besides, why bother with finicky legal details when an instant moral judgment is so much easier and so much more fun to write?
So I was appalled to see Steve braunias use its platform to give oxygen to a moral panic on the disposal plans of the National Library, accompanied by cries of “piracy!” Public conversation would be best served by taking a moment and giving a complicated situation the care and attention it deserves.
Without a doubt, the rights holders are unhappy with the Internet Archive and are in fact suing the organization in the United States. By itself, the existence of a lawsuit doesn’t tell us much – litigation is a way of life in America, and copyright owners have a long history of overestimating their legal rights and losing their rights. bigger case (just ask Oracle, or the Authors Guild, or Universal Studios). Perhaps it is prudent, then, to take a look at the substance of the object of the pursuit; see if anything more than a simple hack is going on.
With that in mind, here’s the controversial thing that this library, the Internet Archive, is doing: they lend books.
The problem is that the library in question is online and the books it lends are digital. The system used is called “controlled digital lending”, the concept behind it is a fairly straightforward implementation of traditional library lending in online spaces. Controlled digital lending has three basic steps:
- A library makes a digital copy of a physical book from its collection. This is an established legal use in the United States, a legal reality cemented by an unfortunate previous lawsuit of rights holders.
- The library lends its digital copies to individual users on request, one at a time. Just like the physical book, there cannot be more borrowers than copies.
- Rights management software terminates the borrower’s access. The same technology that publishers use in their own eBook programs is used to prevent borrowers from making further copies and using the book longer than the loan period allows.
Throughout all of this, the physical book remains on the shelf, intact, and belongs to the lending library – if the library loses, sells, or gives away the physical copy, it stops lending the digital copy. Book loan, real physical books that live somewhere in the real world, with a digital touch.
The key to understanding the controversy here is that this is not a fight against piracy or digitization. It is a fight over the future of libraries and the future of property.
Ownership is, historically, behind both the how and why of lending libraries (which is also why we have second-hand booksellers). The idea is that copyright owners have the right to issue copies to the public, to sell a particular copy of a book once, and thereafter that particular copy becomes the personal property of the purchaser. Anyone who buys a copy of Braunias Missing persons could gladly lend it to a friend or sell it to a bookstore without risking copyright liability; a library can do the same. In any of these cases, I suspect it wouldn’t even bother him.
The problem libraries face is that this system is quickly coming to an end. It turns out that digital books are never sold. No matter how much importance you place on your Kindle library, it is not personal property like the books on your bookshelf. The “Buy Now” button says one thing, but the underlying Terms of Service make it clear that what you are purchasing is in fact a complex license granting you – and you alone – a strictly limited set of permissions regarding your use of the. text.
Unfortunately for libraries, the terms of e-book purchase contracts are not much different. Well they are different in Cost – Libraries pay many multiples of the cost to the consumer when purchasing e-book licenses. And for their money, libraries can still only buy a limited range of licensed rights, which has nothing to do with the ownership model of the old one.
The longer this model persists, the more the local library will begin to become a Netflix for books, i.e. less as a collection built and owned by a community, more as a suite of content temporarily licensed from the oligopoly of editing. It may or may not seem like a dystopian future to you, but you better believe that it scares the bejeezus of today’s pukapuka whare.
This is because libraries are choosing controlled digital lending to maintain the traditional library model in a shrinking world. In doing so, libraries greatly expand who can read what books and the ways in which they can read them. For many of us, that means getting neat little features, like the ability to do a full-text search on a book we’re reading. For others, such as people with disabilities who prevent reading printed books, or for those who live far from physical libraries, it is a game-changer in access to writing. Does that sound terrible to you? Chances are good that you are an editor.
If all of this debate gives you strong feelings in favor of either side, I hope you will agree that it raises important questions that need to be taken seriously, not casually. These are also issues that require democratic engagement here in New Zealand. The future of our libraries does not depend on the outcome of an American lawsuit. We write and enforce our own copyright laws, and luckily they are currently under review. If there’s one blessing buried somewhere in all of this mess, it’s the prospect that it could provide an opportunity to make the Book Law work properly for our books.