In honor of Open Access Week, and particularly this year’s theme of structural equity, we wanted to highlight a project from the Internet Archive that is doing extraordinary work promoting access to knowledge. The bad news: that project is also under legal threat. The good news: the Archive, with help from EFF and Durie Tangri, is fighting back.
The Archive is a nonprofit digital library that has had one guiding mission for almost 25 years: to provide universal access to all knowledge. Democratizing access to books is a central part of that mission. That’s why the Archive has been working with other libraries for almost a decade to digitize and lend books via Controlled Digital Lending (CDL).
This service has been especially crucial during the pandemic, but will be needed long afterwards.
CDL allows people to check out digital copies of books for two weeks or less, and only permits patrons to check out as many digital copies as the Archive and its partner libraries physically own. Lending happens on an “own to loan” basis—if a digital copy is checked out to a patron, the physical copy is unavailable to other patrons as well. CDL does use DRM to enforce that limited access, but it is still true that anyone with an Internet connection can read digital versions of the great works of human history.
This service has been especially crucial during the pandemic, but will be needed long afterwards. Many families cannot afford to buy all the books they and their kids want or need to access, and look to libraries to fill the gap. Researchers may locate books they need, but discover they are out of print. Others simply want access to knowledge. And all of these people may not be able to visit the physical library that houses the works they need. CDL helps to solve that problem, creating a lifeline to trusted information. It also fosters research and learning by keeping books in circulation when their publishers are unable or unwilling to do so.
But four giant publishers want to shut that service down. Last year, Hachette, HarperCollins, Wiley, and Penguin Random House sued the Archive, alleging that CDL has cost their companies millions of dollars and is a threat to their businesses. They are wrong. Libraries have paid publishers billions of dollars for the books in their print collections. They are investing enormous resources in digitization in order to preserve those texts. CDL simply helps libraries ensure the public can make full use of the books that libraries have already bought and paid for. Digitizing enables the preservation of physical books, increasing the likelihood that the books a library owns can be used by patrons. Digitizing and offering books online for borrowing unlocks them for communities with limited or no access.
Readers in the internet age need a comprehensive library that meets them where they are.
The Archive and the hundreds of libraries and archives that support it are not thieves. They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world. Governments around the world have recognized the importance of that mission and enacted a host of rules to ensure that copyright law does not impede it. It's a shame that these publishers would rather spend money on lawyers than on fostering and improving access to books. What is worse, the publishers want the Archive to defend CDL with one arm tied behind its back. They’ve claimed CDL hurts their bottom line, but are doing their level best to limit investigation into that supposed harm. For example, the publishers spoke often about CDL with a powerful industry trade association, which presumably included discussions of any such harm, but they are refusing to share those communications based on claims of privilege that just don’t pass the smell test. Meanwhile, members of Congress recently launched an investigation into e-book licensing practices that may shed light on the digital book ecosystem, and the onerous restrictions that impede libraries’ ability to serve their patrons.
Within that context, the Archive has made careful efforts to ensure its uses are lawful. The CDL program is sheltered by copyright’s fair use doctrine, buttressed by traditional library protections. Specifically, the project serves the public interest in preservation, access, and research—all classic fair use purposes. Every book in the collection has already been published and most are out of print. Patrons can borrow and read entire volumes, to be sure, but that is what it means to check a book out from a library. As for its effect on the market for the works in question, the books have already been bought and paid for by the libraries that own them or, in some instances, individuals who donate them. The public derives tremendous benefit from the program, and rightsholders will gain nothing if the public is deprived of this resource.
Readers in the internet age need a comprehensive library that meets them where they are—an online space that welcomes everyone to use its resources, while respecting readers’ privacy and dignity. EFF is proud to represent the Archive in this important fight.
EFF is proud to celebrate Open Access Week.