From Publishers Weekly:
The Hachette v. Internet Archive case has been in the press lately following the parties’ filing of summary judgment motions. But the case is not about the end of copyright as we know it, as Copyright Alliance CEO Keith Kupferschmid implied in his July 18 PW Soapbox, “Standing Up for Copyright.” Nor is it a “torpedo” aimed at the Copyright Act, as AAP CEO Maria Pallante said in a recent PW q&a. Rather, the case concerns the special role of libraries to provide open, nondiscriminatory access to books.
At issue in the publishers’ lawsuit is a practice called controlled digital lending, the principles of which my colleague Dave Hansen and I codified in a 2018 white paper. Under CDL, libraries (including the Internet Archive) make scans of their legally acquired physical books and loan the scans in lieu of the print under rules that mimic physical lending: only one person can borrow a scan at a time; the scans are DRM-protected; and only one format can circulate at a time to maintain a one-to-one “owned-to-loan” ratio. In other words, if the scan is checked out, its print counterpart cannot circulate, and vice versa.
As librarians see it, CDL is a traditional checkout function adapted for the needs of the modern library user. Under the Copyright Act, libraries have always been free to lend the books they have legally acquired without permission or having to pay additional fees. So why are these major publishers suing over CDL?
Because some publishers want to force libraries into a world in which digital books can’t be owned and can only be licensed (through services like OverDrive, for example), usually at significantly higher prices and under restrictive terms. Central to their lawsuit, the publishers argue that a library loan via CDL represents a lost license fee. And while I understand why these large corporate publishers would like to force libraries into an expensive, limited, non-negotiated, and highly profitable licensed access market for e-books, libraries should not have to buy (and rebuy) expensive, time-limited licenses to provide digital access to the physical books they have already purchased.
In her PW q&a, Pallante claimed that CDL will “irrevocably weaken the ability of authors to license their works.” In fact, a scan of a legally acquired print library book loaned under CDL does not negatively impact the market for publishers or authors. To the extent that a library loan has any impact on the marketplace, a digital loan under CDL is no different than the loan of the print book. Look at it this way: no one disputes that a library can mail a print book it owns to a patron. With CDL, libraries can now deliver access to their physical books using a more efficient means: the internet. And if a book’s digital checkout under CDL is controlled to function just like the physical checkout, what difference does it make whether a patron borrows the library’s physical book or the library’s scan of that book?
Pallante suggests such efficiency is a bad thing, citing the publishers’ long expressed desire for “friction” in digital library lending. But having legally purchased their physical books, the IA and its partner libraries are entitled under copyright law to lend them. Nothing in the Copyright Act requires there be any amount of friction in the lending process. Copyright law does not protect friction.
It is time for the major publishers to stop treating each library loan as a lost consumer sale. In his Soapbox, Kupferschmid complained that the IA has “amassed a collection without paying the rights holders a cent.” In fact, the books were paid for. These are the books that sit on our libraries’ shelves or in our off-site repositories. They were all purchased by a library or otherwise legally acquired, and the authors were all paid in accordance with their publishing contracts. Furthermore, this is what libraries do: amass and preserve collections that serve an important, fundamental purpose in society long recognized and valued by the public, courts, Congress, as well as by publishers and authors.
Despite the hyperbolic rhetoric surrounding this case, CDL is not some form of library-sanctioned piracy. CDL is based in copyright law to respect rights holders while broadening access to the books that library systems spend billions of dollars to collect and maintain for the public—including long-neglected, out-of-print books with enormous social and scholarly value and books for which commercial e-book licenses are not available.
Link to the rest at Publishers Weekly
Hi PG, thanks for sharing. I confess that I like the argument when it is applied to local libraries who have scanned books in their collection and are lending the book to people within their catchment basin. The argument as he lays out is relatively simple:
Scanned in a physical book –> Already paid for, everyone got their money, they’re only loaning what they already own;
1 book, 1 reader –> Online or digital, they restrict it so only one person can borrow at a time, same as if it was the physical book and only 1 format can circulate at a time;
DRM in place –> Can’t be copied, theoretically at least;
Distribution –> If you can mail a book out to a patron or have a mobile unit deliver, why not email or DL to the same person?
It’s compelling, but incomplete in my view.
Obviously, part of the original model is that eventually physical books wear out. And if the library wants another copy, they have to buy another copy. Which would then generate another set of royalty payments all the way down the line. With a scanned copy, they have potentially extended that life indefinitely. Ebooks are the same “risk” for publishers, as it can’t degrade, but they have solved that by adjusting their pricing models as best they could. This isn’t much different than the same pressures on serials, where if you get a personal subscription, the price is say $100 a year, but an institutional subscription by a library is $1500. And no, you can’t gift a personal subscription to a library. Having spent some of my university days in a serials section of a university library, the pressures are exceedingly similar.
However, I find it hard to hold to that argument for something like the Internet Archive, or really any library that expands its reach beyond a simple physical catchment basin. The author dismisses “elimination of friction” as just noise, and not something worth considering…but when you eliminate enough friction that you create a whole new business model, that’s a different story.
I’ll share an example that I’m both delighted by and disturbed about with my local library. I live in a city just under 1M people, lots of branches, and they offer ebooks through Libby / Overdrive / WhateverTitleItHasToday. It likes apps and browsers over downloads to desktop, but you can still do both. For me, in the past, if I didn’t feel like I wanted to own a title, say the latest novel from Lee Child, I would go to the local library and try to borrow it electronically. They get LOTS of copies in the short-term of his work, but there are still hold queues. Maybe I’ll get the book in a week, maybe the line is so long by the time I request it that it suggests it won’t be for 27 weeks. At which time I can decide — am I willing to bear the friction of waiting 27w for a free copy or do I want it tomorrow in paper at my local bookstore or RIGHT NOW electronically from a dozen different online sources? That can be a significant friction question, and people will make their decision based on tons of factors. This is really no different than when it was all in paper and I added myself to the queue for a paper copy to borrow. The friction doesn’t change the business model, it just digitized the friction.
However, my local library recently partnered with four other libraries in our province so that we can all access each other’s catalogue for borrowing. I can use the other 4 libraries resources as if it was all one library. Including all their ebooks. Now I have access to 5 libraries worth of ebooks. And I have found that with this model, I am rarely unable to find at least one library with the ebook available NOW. There IS no friction. The enlarged resources make it almost frictionless. Except here’s the kicker to the business model — those 4 libraries are located almost 5 or 6 hours away by car. The libraries serve 3.2M citizens across their five municipalities. Free books, no friction, almost always available or maybe only a week to wait? My “friction” purchases through Amazon have dropped to almost NIL. Just about everything I want, I can get immediately.
But what if ALL the libraries in my province did that? 15M people. Five times what I already have. What it is doing is creating a larger pool that evens out friction across a larger base. That is a much different market.
And if you do that for the entire internet as the internet archive is doing? Well, I’m hard-pressed to say it’s the same model. I like the argument if you restrict it to a single small catchment basin. But not if it’s wide open internet.
There is another piece that I haven’t wrapped my head around yet either though that goes the other way. What about an out of print book? One you can’t buy anywhere, if you can it’s used, and there are no royalties involved at all? I love reading old EDGAR nominees. Or since I’m anal-retentive, I wanted to read the original novels by Sue Grafton that have NOTHING to do with Kinsey Milhone. I got them through Interlibrary Loans, I couldn’t even BUY used through Amazon resell. If the Internet Archive is sharing something that is out of print, or even my local library is, who “loses”? Has the company with the license “abandoned” the market by letting it go out of print?
And now for a completely weird experience I can’t merge into the model either. Jurassic Park by Michael Crichton. My son is doing a book presentation at school and he wanted to do it about JP. So no biggie, I’ll just order off Amazon, he wanted the paper copy to hold up and show off. Amazon said a “1-2 month wait”. WTF? How????? Okay, must be something weird with Amazon. Went to Indigo. Could order it, which I did, and then afterwards got an update saying the book wasn’t available and it might take up to a month. Huh? In the end, it was only a week. But how is that a book, even as old as JP, is not available for order and relatively “in stock”? I searched local new bookstores and NOBODY seemed to have a copy in stock. They had newer titles, sure, but not that one. And he’s been dead for some time, it’s not like there’s new titles coming out that our outselling his big ones. It’s not earth-shattering by any stretch, but if a series of popular titles by Crichton that are still in print are not “click and get in a day”, what kind of “friction” does the author of the OP think is valid?
PolyWogg
About JURASIC PARK pbook: sales volume is probably low enough that it doesn’t justify storing many copies in *different* locations. The publisher probably has a single box in a US warehouse that gets refreshed via POD once a month. You were probably lucky.
Dead tree pulp fans forget that warehouse space costs money so if a book isn’t moving fast enough to offset the recurring cost it isn’t worth storing. One of many reasons why the big tradpubs are costing themselves money by their minimization of their ebook sales.
As to the OP, beating tbe dead horse yet again: ebook editions are a different product than retail pbook and so are library books, which cost more because their price bakes in the lost sales from lending. Buying one does not legally confer rights to the other. We’ve been that way before. Repdatedly.
Your thought experiment highlights the very real economic damage to authors (and publishers but who cares about them, right? 😉 ) inflicted by the handwaving of the IA and their apologists. Commercial book writing is low enough margin as is, legalizing their brand of piracy (piracy=unathorized reproduction of copyrighted products) will either result in less books published, the end of retail pbooks, or a raising of retail pbook prices to account for the piracy, say to US$50-100, depending on how long the current inflationary age runs.
Things are bad enough as is.