Record Number of Libraries Hit One Million Digital Lends in 2023

From Publishers Weekly:

OverDrive reps reported this week that a record 152 library systems and consortia across seven countries—including 41 states and seven Canadian provinces—surpassed the one million digital lends benchmark in 2023, which includes e-books, digital audiobooks, and digital magazines. The numbers represent a significant jump from the 129 library systems that hit the milestone in 2022.

The 152 public libraries hitting the milestone are based in the U.S., Canada, Australia, Canada, Germany, New Zealand, Singapore, the United Kingdom, and the United States.

For the second year in a row, the Los Angeles Public Library topped the global list, with more than 12 million digital titles circulated; MELSA: Twin Cities Metro eLibrary in Minnesota remains the highest circulating consortium. Houston Public Library in Texas experienced the highest year-over-year circulation growth, up 57%,, while Öffntlicher Bibliotheken in Berlin, Germany, held the strongest growth for a library outside North America—up 46%—for the third consecutive year. In addition, OverDrive said that 23 library systems hit the million lend mark for the first time in 2023.

The news comes a week after OverDrive reported that 2023 was another record-breaking year for digital library circulation, with a 19% increase in library checkouts of digital media over 2022. In all, library users worldwide borrowed some 662 million e-books, digital audiobooks, and digital magazines.

Link to the rest at Publishers Weekly

Judgment Entered in Publishers, Internet Archive Copyright Case

From Publishers Weekly:

More than four months after a federal judge found the Internet Archive liable for copyright infringement for its program to scan and lend library books, the parties have delivered a negotiated agreement for a judgment to be entered in the case. But a final resolution in the case could still be many months, if not years, away, as Internet Archive officials have vowed to appeal.

The jointly proposed agreement includes a declaration that cements the key finding from Judge John G. Koeltl’s March 24 summary judgment decision: that the IA’s unauthorized scanning and lending of the 127 in-suit copyrighted books under a novel protocol known as “controlled digital lending” constitutes copyright infringement, including in the IA’s controversial “National Emergency Library” (under which the IA temporarily allowed for simultaneous access to its collections of scans in the the early days of the pandemic, when schools and libraries were shuttered).

Most importantly, the proposed agreement includes a permanent injunction that would, among its provisions, bar the IA’s lending of unauthorized scans of in-copyright, commercially available books, as well as bar the IA from “profiting from” or “inducing” any other party’s “infringing reproduction, public distribution, public display and/or public performance” of books “in any digital or electronic form” once notified by the copyright holder. Under the agreement, the injunction will not be stayed while the case is on appeal—essentially meaning that once Koeltl signs off, the IA will have to take stop making unauthorized scans of copyrighted works available to be borrowed within two weeks of notification.

The parties left one final dispute for Koeltl to clean up, however: what books will be “covered” by the proposed injunction?

In a letter to the court, IA attorneys argue that “Covered Books” should be limited to books that are both “commercially available” and available in digital format. “This case involved only works that the Publishers make available as e-books and so the scope of any injunction should be limited accordingly,” IA attorneys argue. “Because the parties did not have the opportunity in this case to litigate the degree to which the unavailability of digital library licensing would affect the fair use analysis, it is inappropriate for an injunction in this case, by its breadth, to effectively prejudge the outcome of that question.”

Lawyers for the plaintiff publishers counter that the injunction should cover all unauthorized scans of commercially available books, whether the copyright holder has licensed a digital edition or not. “The law is clear that the right to decide whether or not to publish a book in electronic format belongs to its authors and publishers, not IA,” the publishers’ letter argues. Furthermore, IA’s unauthorized digital editions create “clear potential market harm to the print book market,” the publisher letter claims, because a “straight, verbatim digital copy of the entire work is an obvious competing substitute for the original.”

It is expected Koeltl will simply rule on the dispute based on what’s already been filed, and move forward with the proposed judgment.

In his emphatic March 24 summary judgment ruling, Koeltl easily found the IA’s program to be infringement, eviscerating the IA’s fair use defense in the process. “At bottom, IA’s fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book,” Koeltl held in his decision. “But no case or legal principle supports that notion. Every authority points the other direction.”

Link to the rest at Publishers Weekly

PG was more than a little surprised that the publisher who won the case spent so much time in negotiations with The Internet Archive.

IA was patently wrong in doing what they were doing. The organization’s rationale was the frothiest legal argument PG has seen for a long time. This decision and opinion was one of the easiest to make that the trial judge has had in several years.

Coalition Forms to Battle Library E-book Bills

From Publisher’s Weekly:

In a release this week, an alliance of author, publisher, and copyright industry advocacy groups launched Protect the Creative Economy Coalition, a coalition designed to combat a growing number of new library e-book bills surfacing in state legislatures in the opening weeks of 2023.

“The problem is not theoretical,” AAP president and CEO Maria Pallante said in a statement. “The state bills would subject authors and publishing houses of all sizes to serious liabilities and financial penalties for exercising the very rights that the Copyright Act so clearly affords them—the definition of a constitutional conflict. Moreover, they would forge a concerning precedent for downstream appropriation of IP investments by actors well beyond the states, especially as to already precarious digital copies. We stand by our time-tested copyright system, and we are deeply dubious of assertions that devaluing the Nation’s creative output is in the public interest.”

The coalition effort comes as a host of new library e-book bills have been introduced in several states in 2023, and a year after a federal judge in February of 2022 struck down Maryland’s groundbreaking library e-book law, finding that the bill was likely preempted by the federal Copyright Act.

“These bills are unconstitutional and for good reason. They target the federal copyright system that authors depend on to earning a living,” said Mary Rasenberger, CEO of the Authors Guild. “By forcing pricing limits and other restrictions on not just publishers but thousands of self-published authors, the bills exhibit total disregard of the reality that authors in the commercial marketplace have to earn enough money to stay in the profession. The Authors Guild is fully committed to libraries having access to all books and in all formats to meet their communities’ needs. We regularly lobby for increases in library funding. It is unfair to put the cost of libraries’ needs on authors.”

Link to the rest at Publisher’s Weekly

PG says this is a battle that could backfire on Big Publishing.

PG thinks the publishers have a good constitutional case (assuming that they’re properly positioned to be speaking on behalf of authors and not their own commercial interest).

However, libraries, particularly public libraries are in the company of Mom and apple pie in the view of a great many citizens.

For those who may be unfamiliar with the First Amendment to the United States Constitution, here it is:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

US Senate Finance Committee Presses Publishers on Library Ebook Contracts

From Book Riot:

Earlier this year, Fight for the Future — a group of technology experts, policymakers, and creatives — launched a tool called Who Can Get Your Book, meant to highlight the challenges of accessibility and availability of ebooks in public schools and libraries, rural areas, and other communities where these disparities create burdens to information. It is but one organization seeking transparency around ebooks from publishers, and now, the US Senate Finance Committee is pushing for more.

Finance Committee Chair Ron Wyden (D., Oregon) and U.S. Representative Anna G. Eshoo (D., California) lead the latest charge, drafting a series of letters to the Big Five publishers to clarify their ebook contracts with public schools.

Ebook contracts are notoriously tricky. For libraries, who can purchase print books and own them through their natural lifespan, ebooks come with restrictions on a number of fronts. They aren’t owned by the library and instead are licensed: at any time, the books may disappear or come with circulation limits, and those licenses come at astronomical prices. In cases where licenses can be negotiated with better terms for the library, costs only grow.

These contracts and the ways they restrict access for users have become magnified over the course of the pandemic, when the digital divide became even more profound.

As reported in December, one school district in southern California found itself budgeting $27 per student every 12 months to access the classic and widely-taught The Diary of Anne Frank. The same title can be purchased in print by a library for a one-time price and used without limit; outside of the library, the average person can purchase The Diary of Anne Frank on Kindle one time from anywhere from $.20 to $14 and read it as much as desired for that single cost.

That doesn’t mean non-library purchases of ebooks are perpetual, nor are they owned by the individual who made the purchase.

“Even readers with vast personal collections of e- and audio-books should be alarmed, as most ebooks and audiobooks are also merely licensed to those who believe they are “buying” them, leaving the door open for publishers and big tech companies like Amazon to later erase books, as well as alter what they say, down the line,” said Lia Holland campaigns and Communications Director at Fight for the Future.

Beyond the costs, not all digital material is made available for licensing by schools or libraries. Amazon exclusives, for example, keep many works completely inaccessible. Who Can Get Your Book gives points for every accessible format to a title, and uses those to grade how easy it is to borrow it. Born a Crime, the popular memoir by Trevor Noah, for example, earns a D grade because the digital audiobook isn’t available outside its exclusive deal with Audible and because of restrictive licensing agreements for the ebook.

All of these challenges have led to demand for change.

“E-books play a critical role in ensuring that libraries can fulfill their mission of providing broad and equitable access to information for all Americans, and it is imperative that libraries can continue their traditional lending functions as technology advances,” reads the letter Senate Finance Committee members sent to Penguin Random House, Hachette, HarperCollins, Simon & Schuster, and Macmillan.

. . . .

“We are thrilled to see legislators taking action for the public’s right to own and preserve all books, no matter what form they are published in. With so much of our lives happening online, the opportunity to own digital books is almost nonexistent—a stark and concerning departure from how our society interacts with paper books,” said Holland.

“Through restrictive and expensive licensing schemes on ebooks and audiobooks, publishers are acting against the best interest of authors by reducing the number of titles that libraries and schools are allowed to offer and preserve. This often means that the most successful and mainstream books are the only ones purchased, locking many authors out of income from library purchases as well as away from the vast audiences of readers that public institutions serve. We hope that legislators will take swift action to ensure perpetual access to knowledge and diverse voices for everyone.”

Earlier this summer, Maryland became the first state to pass legislation on ebook licensing. The bill, which goes into effect January 1, 2022, requires any publisher offering ebooks for sale to consumers in the state also make those materials available for purchase by libraries in the state.

In other words, exclusives would no longer be allowed to be exclusive or put undue access barriers to library materials in the state. Publishers Weekly breaks down this legislation, making it sound like Amazon remains a question mark.

Link to the rest at Book Riot

Yes, of course traditional publishers would screw up library licensing of ebooks just like they screwed up everything else with their ebook businesses.