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14 Sep 2020
The Internet Archive scans paper books and lets people borrow the scans. In what they call Controlled Digital Lending (CDL), scans of books still in copyright are limited to one person at a time per physical copy, analogous to the one person at a time who can borrow a physical book from a library. For books not in copyright, there's no limit on how many people can use the scans at once. Earlier this year in response to the COVID-19 pandemic, they turned CDL into a National Emergency Library that let multiple people borrow the in-copyright scans as well, saying this was a temporary replacement while local libraries were closed, and indeed they want back to the one-borrower CDL policy in mid-June. The publishing industry has never liked CDL, and the expanded access was for them the last straw, leading four large publishers to sue the Archive in early June to make them stop. The suit is moving very slowly, with the current schedule running through at least September 2021 before a trial could start, but in the meantime, lots of people have opinions about the suit, such as a recent article in The Nation. The public face of the Archive's CDL is Brewster Kahle, who started the Archive and still leads it. Since those publishers are pretty faceless, the most visible public face of opposition to the CDL has been Ed Hasbrouck, one of the leaders of the National Writers Union (to which I belong so he's sort of my shop steward.) Ed's written a lot about CDL, such as this FAQ on the NWU web site. I happen to know and like both Brewster and Ed, each of whom has been kind enough to invite me to dinner at their respective houses when I was in town. So which one is right? Brewster's argument is basically that CDL is the 21st century version of what paper libraries have been doing for centuries. A principle called "first sale" says that once you buy a physical book, you can do whatever you want with the book including lending it out as libraries do. Ed's point (greatly oversimplified, see the FAQ linked above) is that paper books and electronic books are not the same, CDL's scans are copies that the copyright law prohibits, and the argument that it's the same fails for a variety of other reasons. Furthermore, it's not harmless because it deprives authors income in various ways. The problem is that they both are right. The exact rights protected by US copyright law are far from fixed, and have changed over the centuries. In the 1800s, if you published a book, your copyright did not include adaptations into plays. When Harriet Beecher Stowe published Uncle Tom's Cabin in 1852, unrelated people adapted it into plays, often quite badly, and there was nothing she could do about it. (She still made a great deal of money from the book.) The current copyright law was written in 1976, more than a decade before the public Internet or WWW or smartphones. For obvious reasons, it says nothing about scans or e-books or the Internet that did not yet exist. Keep in mind that the basic purpose of US copyright is to give people enough incentive to write stuff that will eventually enter the public domain. Hence even if CDL is not wonderful for us authors, if it provides a public benefit, which a lot of people believe it does, that could be OK. Looking at the history of copyright law, there have been a lot of situations where material was turned into other media not covered by the law, with the usual assumption being that it was legal unless the law specifically said otherwise. Indeed, the previous revision of the law in 1909 was prompted by the emerging threat of piano rolls to the sheet music industry. The industry's complaint about CDL includes a great deal of hyperbole beyond Ed's arguments, including a conspiracy theory that Better World Books, an Indiana online used bookstore that provides a lot of books to the Archive is secretly part of Brewster's "empire." (The Archive denied this.) There is also a lot of hand-waving about all the money flowing through the Archive implying it's nefarious or it's secretly a commercial profit making businesss, and some other random claims such as that some of the scans have turned up on eBay and it's the Archive's fault. I don't find any of those at all persuasive. As noted in the Nation article, for the publishers, the only good e-book is one that is licensed rather than sold, with limits on how many times it can be lent. While it's easy enough to see why that's what they want, it's a lot harder to see why that would be good public policy, or that it necessarily follows from a copyright law written decades before the first e-reader shipped. Given the slow schedule for this case I'm sure we'll hear lots more about it from advocates for the two sides, but keep in mind that the specific issue of the legality of CDL is quite narrow, and at this point, anyone who says they know how the law applies is just guessing.
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