Libraries, the law, and equality

 

In the spirit of "everyone is equal under the law", it is equally illegal for both a starving man and a billionaire to steal a loaf of bread. Or to copy a book.

 Libraries for the People

It was not all that long ago when "library" often referred to the room in a rich man's home where he stored books that were only available to him, and perhaps members of his family (especially if they were not female). Other libraries, usually larger ones, were attached to prestigious educational institutions and accessible by people worthy of that prestige (which would not include non-white nor female people). We are fortunate  today that we have these things called "public libraries," libraries that serve everyone regardless of their wealth, their race, or their gender.

Here's the catch: public libraries are generally small and modestly funded by the local community. A moderately sized public library has 50,000 - 100,000 volumes. A large public library may have up to 500,00 volumes. A large university library has many more. Harvard University library claims to have 20 million book volumes, 400 million manuscripts, and 10 million photographs. Stanford University library may have at least 12 million book volumes. Michigan State University libraries have about 7 million book volumes. The British Museum Library lays claim to 170 and 200 million items of which 13.5 million are printed books and e-books. There is no question that the members of our community who are served solely by public libraries, while they have unprecedented access to books, are not able to study the full range of printed knowledge of our world. To whit, the university libraries are often referred to as "research libraries" while the local public libraries are called "reading libraries." This separates us into "readers" and "researchers," and while you might conclude that any literate person can read, only those associated with large libraries will be able to avail themselves of the tools to do research.

Digital Access

Much of the research done in academe consumes and creates journal articles. Originally issued only in paper, and mailed to libraries and departments, journal articles have been available in digital form from the mid-1990's and today it would be unusual for an article-based publication to be issued only in paper. Journal owners have digitized the full run of publications, as have cooperative projects based in academia. A researcher or student at a Western university is likely to have more than a century of scientific, technical or social science academic article output available through the Internet, any day, any time, and perhaps from any place. Anyone from less wealthy nations will have less access, although perhaps just a tad more than they had when the articles were issued only in paper.

The story is different with books. While most academic articles have been converted to digital form, the same cannot be said of books. It is only recently that publishers have issued their books in electronic form using the electronic files that are now part and parcel of the publishing process. That only takes care of current publications, however. Sitting in libraries are centuries of one-off publications in book form. Books from this vast backlog must be digitized from the existing physical copy.  Projects by libraries and educational institutions to digitize the monographic backlog, similar to those that succeeded in digitizing the journal output of the ages, have not been accomplished. There are various reasons why that is the case: the sheer number of book pages that would need to be digitized is huge; non-destructive digitization of bound volumes is difficult and often does not yield good results; partnering with publishers for this task is hampered by the fact that numerous books from the 20th century and older are "orphaned," meaning that although they may be under copyright their copyright holder cannot be found; and compared to modern ebooks, digitized books have little to recommend them for reading, although with their searchable text they may be useful for research.

The only efforts to digitize the backlog of books, Google Book Search and the digitizing by the Internet Archive, have resulted in lawsuits against those organizations. The suit against Google concluded that digitization is allowed as long as the digitized books are provided for purposes of searching but not reading. The Internet Archive took the view that books are for reading, an approach that I find hard to oppose.

Reading vs Research

Reading and research are related but different activities. Reading is often associated with books, and includes books on scientific and academic topics as well as fiction, from great literature to beach reads. While few non-researchers read academic articles, some members of academe do read books as part of their research. Of course, many people also read for pleasure; reading is a key means of acquiring culture, along side other activities like taking in performances of various arts.

If you are not at one of those institutions with a large research library, the only way you may have to see the content of many books is by accessing a digitized book. A digitized book is not the same reading experience as the ebook produced by publishers. A digitized book has not been produced from an electronic file of its contents as an ebook has been. Instead, each page of the physical book has been photographed, and those images have been analyzed using optical character recognition (OCR) software. The result of the OCR is a text file, and that file will be more or less "lossy" depending on things like the condition of the original book pages, the clarity of the font, the language of the text. 

Unlike an ebook, reading the digitized book usually means viewing pictures of the books' pages.

 

It's not a great reading experience, but imagine that the book is important for your studies or your work; it would be worth the effort.

On the other hand, if you are wanting some modern leisure reading and you are in North America, you will be much better served by checking out the book and ebook offerings of your public library. If you are not in North America, and if your locality has a limited public library or no public library at all, then the extra effort that you may need to make to read a digitized book may be worth it to you. If, however, you had the funds to purchase the materials you needed or were associated with an institution that made those materials available to you, it is unlikely that you would choose the less sophisticated and less available copy provided at the Archive.

Hachette, et al., v Internet Archive

The above sets out some of the social parameters that we should consider when thinking about the recent lawsuit relating to Controlled Digital Lending. (See previous post.) In brief, the Internet Archive has digitized many books and makes them available globally, lending one "copy" at a time. A group of publishers has sued the Archive based on a set of books for which the publishers hold the copyright. The issue is often presented as a test of the concept of Controlled Digital Lending, although only some books are in question in the lawsuit. Those books represent only a portion of the books available at the Archive or in libraries in general. Although one may think of a binary division of books into "still in copyright" and "no longer in copyright" the actual situation is more complex.

1. There are the books that are out of copyright, which generally means books from 1924 and earlier in the US. These are not under discussion. However, there is no way to separate the basic copyrighted content of a book, like Mark Twain's Huck Finn from later reprintings that often add some bit of a preface so that the publisher can put a copyright notice on it and pretend to have the rights. Such "books" may be considered in copyright even though the primary content of those books is not. There is unfortunately no penalty for a publisher in slapping a copyright statement onto a book that is not under copyright, as can be seen in my favorite example of a blank journal sold with a copyright notice.
2. There are the orphaned works, for which there is no one to assert rights. Either the rights holder (the publisher) no longer exists, or the documentation that would make it possible to assert rights does not exist. Because this is a category of unknowns, it is quite difficult to determine which books are in this category.
   
3. There are works that are not orphaned but the publisher is not asserting rights in relation to Controlled Digital Lending. This may be the majority of the books being loaned by the Archive because there are only four publishers in the lawsuit. We don't know what the other publishers think about the lending.
   
4. There are the books by the four publishers that are included in the lawsuit. These four publishers  are asserting that the Archive violated their rights and potentially deprived them of income.

It would be great to know the figures that would allow us to compare 1-3 with 4. It would also be great to know how many loans were actually made by the Archive of those books in the 4th category. Presumably that figure will inform the penalty that is imposed on the Archive.

The Archive's defense seems to be solid as it shows that in both the presence and the absence of its contested service no change was noted for publisher sales. It is chilling that the judge so readily dismissed the Archive's arguments, and especially chilling if you consider, as a hypothetical, applying this same argument to libraries in general.

"IA’s experts observed that print sales of the Works in Suit and general demand for library ebooks did not decrease while the Works in Suit were available on IA’s Website; that Amazon rankings for the Works in Suit improved when IA’s digital lending skyrocketed (and government lockdowns were in full effect) at the beginning of the Covid-19 pandemic; and that, despite the removal of the Works in Suit from IA’s library in June 2020, OverDrive checkouts of the Works in Suit did not increase." (Case 1:20-cv-04160-JGK-OTW Document 188 Filed 03/24/23 Page 42)

That sounds like a good defense, yet the judge dismisses it.

"But these metrics do not begin to meet IA’s burden to show a lack of market harm. Taking them at face value, they show at best that the presence of the Works in Suit in IA’s online library correlated, however weakly, with positive financial indicators for the Publishers in other areas. They do not show that IA’s conduct caused these benefits to the Publishers. In any event, IA cannot offset the harm it inflicts on the Publishers’ library ebook revenues, see, e.g., Andy Warhol Found., 11 F.4th at 48; TVEyes, 883 F.3d at 180, by pointing to other asserted benefits to the Publishers in other markets. Nor could those asserted benefits tip the scales in favor of fair use when the other factors point so strongly against fair use." (Case 1:20-cv-04160-JGK-OTW Document 188 Filed 03/24/23 Page 43)

Given this kind of reasoning, there is no "proof" that any library could provide that would clearly absolve the library of harm to publishers. That should be okay because "not harming publishers" is not how we should see the role of libraries in our world. Libraries exist for the same reasons that educational institutions exist: to further the abilities of citizens to participate in "science and the useful arts", as it is called in the constitution. Yet as Dan Cohen says in his article in the Atlantic:

On Friday, the judge sided almost entirely with the publishers. The Internet Archive “argues that its digital lending makes it easier for patrons who live far from physical libraries to access books and that it supports research, scholarship, and cultural participation by making books widely accessible on the Internet,” Judge John G. Koeltl wrote in his pointed ruling. “But these alleged benefits cannot outweigh the market harm to the Publishers.”

Thus, societal benefits, such as those of libraries and schools, take a back seat to profit. Or should I say "alleged benefits." Today, copyright law creates a basis for the legality of library lending through the first sale doctrine. Some library privileges relating to making copies are included in the US copyright law. But these do not add up to actual support for the work of libraries, only a limitation on culpability as they perform key functions such as preserving cultural materials that have been abandoned by their creators and providing access to recorded culture to all who request it. In the legal regime, libraries are allowed, but not encouraged, to provide a valuable service for society. Judge John G. Koeltl has little regard for that service.