You Can’t Buy These Books

From The Nation:

In a remarkable brief filed on July 7 in their ongoing lawsuit, four titans of corporate publishing (Hachette, Penguin Random House, HarperCollins, and Wiley) accused the Internet Archive of stealing, “mass-scale copyright infringement,” and “[distributing] full-text digital bootlegs for free.” Those are pretty wild allegations—especially considering that the Internet Archive’s Open Library operates on the traditional terms that libraries in this country have abided by for centuries. The Open Library loans books, which it owns, to one patron at a time, for a fixed period—just like any other library. Like any public library, the Open Library doesn’t charge money for this service. The main difference is that the Open Library loans e-books online. Each e-book is scanned from a paper copy, and the paper copy is stored away and doesn’t circulate; this practice is called Controlled Digital Lending, or CDL.

One book, lawfully bought or acquired, one scan, one patron at a time—no money changes hands. And yet the publishers’ brief does its best to cast the librarians of the Internet Archive as a gang of thieves and pirates.

In reality, the publishers’ attack on the Internet Archive is a Trojan horse for a very different, and radical, idea: that e-books are fundamentally—legally—different from paper books. If accepted, their argument would remove e-books from the many statutory protections upon which library rights positively depend. That outcome would leave libraries vulnerable to the draconian licensing deals under which e-books are increasingly offered. And libraries would have to pay and pay, in the absence of digital books that can be permanently bought and owned outright.

The publishers’ true goal appears right on page 6:

Controlled digital lending, as practiced by Internet Archive, collapses the boundaries between physical books and ebooks. CDL’s basic tenet is that a non-profit entity that owns a physical book can scan that book and distribute the resulting ebook as a proxy for the physical copy. But this ignores that ebooks are a fundamentally different product from physical books.

They may be a different product, but e-books are still books.

The real stakes in this lawsuit concern not digital piracy but the preservation of library rights; the real renegades here are not the librarians of the Internet Archive but the publishers, who are looking to take a machete to the Copyright Act in order to make their e-book products rental-only, so that libraries—along with you and me and everyone else—will have to keep paying for them forever. 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.

“We need strong and independent publishers,” says Internet Archive founder Brewster Kahle, “and we need strong and independent libraries.”

Because the statutory protections for libraries were written decades ago, when technical constraints on copying and distribution were entirely different from what they are now, preserving traditional library rights has presented challenges in the digital age. These issues were always going to be revisited in the courts, one way or another. In fact, in 2011, in her seminal paper on the legal framework that came to be known as CDL, legal scholar Michelle Wu foresaw this very lawsuit:

[P]ublishers have used new technologies to exert control over works beyond the control they had over printed works. They are replacing ownership with licensing, where they can regulate not only the number of users but also the number of uses.… Given this trend toward greater control over material by publishers, it would be remarkable if the industry did not object to libraries’ digitizing printed materials.

Having anticipated the legal pushback from publishers, Wu observed that the spirit of the law is on the side of libraries: The Copyright Clause was adopted not only to protect authors but to promote the advancement of learning and public knowledge. “At the heart of copyright,” she wrote, “is the public good.”

In the years following the publication of Wu’s paper, a score of leading experts on copyright and libraries joined forces to create CDL, a whole legal toolkit for the traditional library lending of e-books developed with exactly these legal challenges in mind. The Internet Archive’s digital lending relies on CDL, and its reasoning is what is really being tested in the lawsuit.

Disingenuously, the publishers’ brief flatly misinterprets the long history and development of CDL: “Internet Archive…has searched for years to find a legal rationale for its radical infringements. Around 2018, it helped manufacture and market a theory called ‘controlled digital lending’ or ‘CDL.’”

“Publishers spend millions of dollars to make books available to the public,” according to their brief, and that is true. Publishers shepherd books into the world, providing a vitally important service for all. They have every right to profit fairly from their work. But they don’t have the right to change the laws protecting libraries.

Public-spiritedness, by the way, is a quality conspicuously missing from this document. Perhaps realizing they’d better choke out a statement of support for libraries in general, they were able to manage the following: “The Publishers deeply value libraries, recognizing that they foster public literacy, serve local communities, and increase the visibility of authors through book clubs, author talks, and other creative means of reader involvement. Libraries support authors by paying for print books and ebooks.”

They sure do! Libraries have become a huge cash cow for publishers, especially during the pandemic, when nobody could visit a physical library. They admit it themselves, in this very brief: “The publishers’ annual revenue from the library ebook market, which is shared with authors, has risen to hundreds of millions of dollars, simultaneously establishing an important market channel for many titles and serving a more digital public.”

I’m a writer, obviously, and I find it entirely startling that these powerful publishers have no discernible sense of responsibility to the public commons, nor of the symbiotic relationship that principled publishers in a free society should have with libraries. They’re supposed to be on the same side: the side of an educated, healthy and informed public. Publishers should be the champions of libraries, not their enemies.

Link to the rest at The Nation

PG says that, to the extent it ever existed, the ideal that publishers should consider the common good, encourage knowledge and art to be widely distributed within the general population, rich and poor, or cultivate new generations of readers has entirely disappeared with the consolidation of publishing into massive international conglomerates in which the managers of individual publishers are far down the hierarchy of corporate power.

Those up higher in these power structures understand messages in dollars, pounds and euros, not in airy-fairy ideals and principles of democratic concerns of the greatest good for the greatest number.

17 thoughts on “You Can’t Buy These Books”

  1. What p*sses me off about this entire argument is that it is mistakenly treating publishers’ interests as a direct proxy for authors’ interests, when our constitutional grant of power concerning copyright is to the authors (which — not to go all “originalist” on you — was a break from two and a half centuries of English practice, epitomized by the pushback against the Statute of Anne on “natural law right” grounds that was resolved less than a decade before Article I, § 8, cl. 8 was written).

    They’re not. Nobody is a proxy for authors’ interests, for the simple reason that not all authors’ interests align (or remain constant over time). Pretending otherwise certainly makes matters administratively simpler… sort of like the Indiana legislature did in declaring that pi = 3. But it doesn’t reflect reality.

    Damn, there’s my problem: I’m expecting at least a good-faith effort to conform to reality and evidence. My bad.

    • I suspect the notion that publishers are aligned with author’s interests comes from so many movies and TV series showing authors, agents, and editors enjoying long lunches at trendy cafes.

  2. I am unimpressed by any discussion that pretends that the business of selling an ebook to a library and a physical book to a library are identical. One occasionally sees the claim that publishers hate libraries. This is risible. There are entire branches of publishing whose business model is founded on library sales. But ebook sales are different. How so? A physical book has a limited life span. It can only be loaned out so many times because it is so banged up that it will be disposed of. At that point the library might buy another, which is good for the publisher, or it might not. If the latter, a prospective borrower might successfully request the library buy one, or they might buy one themselves. Again, good for the publisher. Or suppose the local library never bought it when it came out. Those two possibilities for that prospective borrower still exist. An ebook, sold under the terms these arguments advocate for, or a scan of a physical book, are forever. It never wears out, and therefore is available in perpetuity. And where borrowing a physical book through interlibrary loan is a hassle, there is no reason in principle that a reader could not check out an ebook from any library in the world that has one currently available.

    One can certainly make an argument about how the public good balances the publishers’ interests. But you have to actually make that argument. The rhetorical approach these arguments actually take is that the publishers are just being wacky, and don’t have any actual point. When I read these, I give fleeting thought to whether this person is clueless or disingenuous, but in my old age I don’t find the distinction all that important.

    • Oh, it is worse: they are pretending that selling a pbook to consumers is the same as selling a pbook to a library with explicit lending rights, or *licensing* a specific number of lends. They aren’t scanning library books but consumer editions, often *used* books.

      I may not agree on the publishers’ pricing but I understand tbat the meeting of the minds is different in each of the three cases. The IA is pretending to convert one type of trznsaction to another, unilaterally…

      To make the OP conflates the story with the packaging.

      We’ll have to see where the judges land…

      • Yes, they are two different things. When you buy a pbook, you are purchasing title to one copy of that book – a copy that you may do anything you wish with, excepting duplication for distribution. You can throw it into the firepit, you can read it as many times as you like, you may make copies for your OWN use, you can lend it to a third party, or transfer it to a third party by gift or sale (with the caveat of not retaining any other copies you may have made).

        An ebook, “sold” to you when you click a “Buy Now” button (misleading the consumer through a half truth, there), what you are purchasing is a lease on the book. With DRM, that lease has no minimum term – the publisher can cancel it five minutes after you have forked over your money, with no recourse available to you. You cannot transfer that lease to any other party.

        Still, these publishers want you to pay the same (or even higher) price than for the pbook that has the same content.

        As to lifetime… ebooks are NOT eternal. While they might last longer than a pbook (although I have shelves full of them that I purchased between 40 and 50 years ago, not to mention a few that predate my parents), they will eventually be lost through misadventure, reader software changes, or more likely through the publisher ceasing to pay for DRM management.

        No, ebooks are not the same as pbooks – but the publishers are “upending” the basic notion of a “book” just as much as the Archive – in a way that, of course, benefits them. (As CEP cogently notes, the idea that they are protecting the authors’ interests is laughable.)

        (Baen excepted in all of this, of course.)

        • Still, these publishers want you to pay the same (or even higher) price than for the pbook that has the same content.

          The publishers would be delighted to have that happen, but they sure don’t expect it. They are pricing the eBook to max profits where revenue is generated from all sales. Print, digital, audio, hardback, special edition, whatever. Change the price on one, and sales of all the others change.

          Consumers do not have a single valuation method for an eBook. They have different tastes and preferences. I’m happy to pay more for an eNovel because I value the ease and portability of using an eReader. But, I will pay more for a pNonfiction because I hate nonfiction on eReaders. That’s me. There are millions of others who disagree.

          While I reject all the eBook valuation methods I read about in these pages, who cares? Other people embrace them and use them. There are so many different points on the demand curve, we all get to sit on one. The publishers price to pull as much money as they can from those curves for as long as they can. It’s a big linear programming problem. Libraries? Bookstores? Online sales? They all run together. Dollars are fungible.

  3. Yes! When you turn on a firehose and blast away all the BS, this is all that matters: “When you buy a pbook, you are purchasing title to one copy of that book – a copy that you may do anything you wish with, excepting duplication for distribution.”

    The Internet Archive is either distributing ebooks without having paid for the license to do so or they aren’t. If they are, they’re stealing, plain and simple. They’re taking what doesn’t belong to them from the authors and yes, from the publishers. That’s the end of the discussion, at least morally. Everyone knows it, and they should because it isn’t that difficult to understand.

    Of course, I also understand there probably will be legal wrangling and trickery and magic shows for years because it isn’t about what’s right, it’s about who can BS their way to a win.
    Unfortunately, in this nation we can no longer even SEE any bottom line (other than the bank account), much less recognize it.

    • Yes but…

      For libraries, this is a telling argument, since they are in the distribution business.

      But the overreach for private individuals via DRM is sufficiently obnoxious that thousands have performed “illegal” technical acts to keep their purchased ebooks from being removable by the vendors. Without any intent to distribute, the private purchaser of an ebook wants to retain possession for as long as the technology will allow, just as he wants to retain possession of a physical book for as long as the paper stays dry. The notion that publishers are selling you an ebook is false — they want to rent it to you, instead. It’s hardly surprising that “buyers” object.

      • We are 25 years into tbe digital content era. People understand DRM and, as proven over and over, the masses don’t care.

        Scan-and-OCR has been recognized as illegal (except, maybe, for personal use) for decsdes now and trying to float a moral equivalency between commercial ebook DRM and tbe IA is just a smokescreen.

        Regardless of how the publishers (traditional and indie) choose to distribute their content the control tbe copyright and tbus have the right to set the terms. Consumers have the right to buy or not buy. (Me, I haven’t bought a single BPH title since the conspiracy days. 11 years and counting. I do not lack for content, DRM’ed or not. I don’t like their pricing so I pass.)

        Lost in the smokescreen is that tbe IA has no right to create tbose eboks much less distribute them, even less to do so without paying the authors. As I pointed above, many if not most of the books they scan are used books that are “donated”. There are authors who allow tbeir works to be “pirated” (Coelho, for one) but that is *their* right, their choice. The IA is unilaterally granting themselves the right without consultation or even allowing authors to opt out.

        There used to be a canadian ebook “pirate” site that offered up epub “unlicensed editions” alongside links to the same title at Amazon. And they even provided an email link for DMCA takedown requests. Every few months tbey get dragged into court and they’d show they honored tbe takedown requests and hide behind the safe harbor provisions. Haven’t heard of them lately so they probably got shut down–or moved their operation to servers elsewhere–but at least they didn’t pretend to be anything they weren’t.

        The IA is instead pretending to be doing a public service at the expense of other people’s income sources. So yes, the bottom line really matters here.

        • Your arguments still don’t quite hit the mark, Felix. Libraries legitimately accept donations of used pbooks, without any payment to either publisher or author, and then lend them out to their patrons. That has been a standard practice ever since public libraries were first created – remember that many were established by wealthy patrons donating their own private libraries.

          What is new here – accepting the premise that the IA is doing what they say they are doing, i.e. making the pbook inaccessible – is that the “expected lifetime” of the pbook is being extended beyond the point where the publishers’ business models depend on it becoming unusable. They are distributing – by lending – one legitimately obtained copy of the book.

          This gets into questions about the “first sale” doctrine – whether publishers and their distributors like Amazon are making it sufficiently clear to the buyer that their product is not subject to it, and also whether “planned obsolescence” is a right afforded under any statute (IP or otherwise) that currently exists.

          Edit – I should also note that libraries also sell pbooks periodically – again, without any further compensation, or obligation to make such, to either the publisher or the author. (These sales are where I obtained a large number of my reference works, like the CRC manuals.)

          • Things changed ages ago.
            (Precisely becaude of the legality of the practice.)
            First sale is really about resale not lending.

            Libraries are picky today. Just be ause the accept them doesn’t mean they distribute them.

            They libraries I used to go to rarely shelved donated pbooks. And when they did, they were usually (comparatively) rare books they re-bound. Most donations are the same bandwagon bestsellers. (Lots of copies of the GOLDFINCH, back in the day.)

            Still, conflating IA with a real library is more smokescreen. They don’t actually do what they do for tbe r easons they claim.
            The true intent of IA is to undercut copyright.

            Bottom line: do you think it is legal (in the US, to be precise) to publish somebody else’s book? They may pretend to be “lending” the pbook but what they are doing is *publishing* an unauthorized ebook just as all the other pirate sites and torrents distributing scan-and-ocr editions of books that don’t exist in digital.

            Consider this vintage piece:

            People can (and do) rationalize anything that saves them money.

            • In the libraries I have seen, which is obviously a statistically rigorous sample, the libraries store the donated books and sell them once a year to raise money.

              • Keeps them on the right side of the law without having to explain the matter to the well intentioned patrons. Plus a few bucks always come in handy.

              • This is done in the areas around me, but it is not done by the library itself – it is done by an organization called “The friends of the {whatever} library”, who then donate the proceeds to the given library.

                • Yes. That is prominently displayed, but the sale is in the library. I suspect everyone is covered.

        • I suspect 99% of eBook consumers have no idea what DRM is. And 99% of the other 1% don’t care. DRM activists do care.

          I understand from reading these pages that any 9-year-old can easily crack DRM. Could be. I cracked DRM out of curiosity, and learned that the average 9-year-old has far more patience than I do.

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