Why a ruling against the Internet Archive threatens the future of America’s libraries [MIT Tech Review]

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I was raised in the 1980s and ’90s, and for my generation and generations before us, the public library was an equalizing force in every town, helping anyone move toward the American dream. In Chantilly, Virginia, where I grew up, it didn’t matter if you didn’t have a computer or your parents lacked infinite money for tutors—you could get a lifetime’s education for free at the public library. A ruling from the US Second Circuit against the Internet Archive and in favor of publisher Hachette has just thrown that promise of equality into doubt by limiting libraries’ access to digital lending.

To understand why this is so important to the future of libraries, you first have to understand the dire state of library e-book lending. 

Libraries have traditionally operated on a basic premise: Once they purchase a book, they can lend it out to patrons as much (or as little) as they like. Library copies often come from publishers, but they can also come from donations, used book sales, or other libraries. However the library obtains the book, once the library legally owns it, it is theirs to lend as they see fit. 

Not so for digital books. To make licensed e-books available to patrons, libraries have to pay publishers multiple times over. First, they must subscribe (for a fee) to aggregator platforms such as Overdrive. Aggregators, like streaming services such as HBO’s Max, have total control over adding or removing content from their catalogue. Content can be removed at any time, for any reason, without input from your local library. The decision happens not at the community level but at the corporate one, thousands of miles from the patrons affected. 

Then libraries must purchase each individual copy of each individual title that they want to offer as an e-book. These e-book copies are not only priced at a steep markup—up to 300% over consumer retail—but are also time- and loan-limited, meaning the files self-destruct after a certain number of loans. The library then needs to repurchase the same book, at a new price, in order to keep it in stock. 

This upending of the traditional order puts massive financial strain on libraries and the taxpayers that fund them. It also opens up a world of privacy concerns; while libraries are restricted in the reader data they can collect and share, private companies are under no such obligation.

Some libraries have turned to another solution: controlled digital lending, or CDL, a process by which a library scans the physical books it already has in its collection, makes secure digital copies, and lends those out on a one-to-one “owned to loaned” ratio.  The Internet Archive was an early pioneer of this technique.

When the digital copy is loaned, the physical copy is sequestered from borrowing; when the physical copy is checked out, the digital copy becomes unavailable. The benefits to libraries are obvious; delicate books can be circulated without fear of damage, volumes can be moved off-site for facilities work without interrupting patron access, and older and endangered works become searchable and can get a second chance at life. Library patrons, who fund their local library’s purchases with their tax dollars, also benefit from the ability to freely access the books.

Publishers are, unfortunately, not a fan of this model, and in 2020 four of them sued the Internet Archive over its CDL program. The suit ultimately focused on the Internet Archive’s lending of 127 books that were already commercially available through licensed aggregators. The publisher plaintiffs accused the Internet Archive of mass copyright infringement, while the Internet Archive argued that its digitization and lending program was a fair use. The trial court sided with the publishers, and on September 4, the Court of Appeals for the Second Circuit reaffirmed that decision with some alterations to the underlying reasoning. 

This decision harms libraries. It locks them into an e-book ecosystem designed to extract as much money as possible while harvesting (and reselling) reader data en masse. It leaves local communities’ reading habits at the mercy of curatorial decisions made by four dominant publishing companies thousands of miles away. It steers Americans away from one of the few remaining bastions of privacy protection and funnels them into a surveillance ecosystem that, like Big Tech, becomes more dangerous with each passing data breach. And by increasing the price for access to knowledge, it puts up even more barriers between underserved communities and the American dream.

It doesn’t stop there. This decision also renders the fair use doctrine—legally crucial in everything from parody to education to news reporting—almost unusable. And while there were occasional moments of sanity (such as recognizing that a “Donate here” button does not magically turn a nonprofit into a commercial enterprise), this decision fractured, rather than clarified, the law. 

If the courts won’t recognize CDL-based library lending as fair use, then the next step falls to Congress. Libraries are in crisis, caught between shrinking budgets and growing demand for services. Congress must act now to ensure that a pillar of equality in our communities isn’t sacrificed on the altar of profit. 

Chris Lewis is president and CEO of Public Knowledge, a consumer advocacy group that works to shape technology policy in the public interest. Public Knowledge promotes freedom of expression, an open internet, and access to affordable communications tools and creative works.