by Dan Moren
The controversy over unlimited digital lending is anything but simple
A really great and nuanced piece by the New York Times‘s David Streitfeld on the legal case over the Internet Archive’s National Emergency Library, which it launched during the early days of the pandemic:
Libraries have traditionally been sanctuaries for culture that could not afford to pay its own way, or that was lost or buried or didn’t fit current tastes. But that is at risk now.
“The permanence of library collections may become a thing of the past,” said Jason Schultz, director of New York University’s Technology Law & Policy Clinic. “If the platforms decide not to offer the e-books or publishers decide to pull them off the shelves, the reader loses out. This is similar to when songs you look for on Spotify are blanked out because the record company ended the license or when movies or television shows cycle off Netflix or Amazon.”
The National Emergency Library, in which the Internet Archive made the titles it had scanned into electronic form essentially without limits, was highly contentious. Publishers, obviously, viewed it as piracy that cut into their bottom line. Authors were heavily divided.
Part of what makes it tricky, as this piece does a great job explaining, is that there’s a disparity between how the rules are and how people think they should be.
The law, as it stands now, is largely against the Internet Archive. That’s just the way it is. Whether that law should be changed is a different matter—one that’s not going to be solved in the courts, as my good friend and colleague Glenn Fleishman wrote:
I am an absolute fan of the Internet Archive and all the work they’ve done to preserve cultural and technical history. But as this article makes clear, they are fighting a legal battle they cannot win, because the law is clear. They need to be fighting a structural battle, all about the law, because they will not win these cases. A judge would have to come up with novel interpretations that would surely be overturned at appellate or Supreme Court level.
As an author, I think there’s yet a third level to this discussion. At the end of the day, the writers are usually the ones who get squeezed.
Most authors don’t make a living from their work, but I think the vast majority of them (if not all) support libraries and the free access to information. Most of us have used libraries a lot during our lives1, some have even depended on them. I don’t think most writers view people borrowing their books from the libraries as lost sales—we view them as possible lifelong fans of our future work.2
The solution, perhaps, is to find other ways to recompense authors for their work being borrowed. Right now, ebooks are usually sold to libraries under licensing procedures that regulate how many times a title can be loaned out before a new license has to be purchased. It’s an uncomfortable compromise, but the power remains in the hands of the publisher (as it usually does).
Other countries, including Canada and the United Kingdom, actually pay authors who live in those countries based on how many times their books are loaned out. Not huge amounts, to be sure, but when you’re a writer eking out a living, every little bit helps.
Sadly, I’m not sure such a program would fly here—especially in the current political environment, where getting funding for the arts is difficult enough as it is—but maybe there are better ways for publishers to recompense authors for these kinds of things as well. But unlike the writers of Hollywood, authors’ ability for collective bargaining is currently limited, and the publishers have deep pockets, so change isn’t likely to be fast or soon.