Publishers Want to Deter Theft Not Kill Libraries

Many digital activists use the phrase “information wants to be free” to give a moral patina to intellectual property (IP) theft and digital piracy. The latest example comes from a case currently before the U.S. District Court for the Southern District of New York, Hachette v. Internet Archive.

In June 2020, a group of publishers filed suit against Internet Archive for creating and disseminating digital copies of their copyrighted works without approval or compensation. Anti-IP activists such as the Electronic Frontier Foundation (EFF)—whose ultimate goal is essentially free digital goods and services at the expense of creators—are using this case to claim IP owners are attacking libraries and killing access to knowledge, resources, and other books not in circulation. These claims distort the simple facts: Internet Archive stole from creators and refuses to compensate them.

Internet Archive’s website maintains digital copies of various creative works including books, movies, music, software, images, and more. Many of these works are in the public domain and freely available, but numerous works—uploaded to the website by both Internet Archive and its users—are still subject to IP protections. One basic tenet of copyright is rightsholders maintain control over how a work is reproduced, transformed, distributed, and publicly performed or displayed. This means copyright owners have a say in many things, including whether their printed works are digitized and how the works are released to the public.

Traditional libraries legally acquire physical copies of works through purchases and donations of new and used books. Copyright owners are compensated via the initial sale, and under the first sale doctrine, a legally acquired (i.e., purchased) piece of physical property (such as a book, car, or shirt) can be transferred (i.e., sold or donated) without having to further compensate (i.e., pay additional royalties to) the creator. This doctrine is vital to libraries who receive donated physical copies of books. Given the tangible nature of physical books, their condition and value tend to degrade over time, much like that of a car. Also, libraries can only lend out the same number of a given work as they physically have in stock.

Currently, when rightsholders or their designated agents digitize protected works, traditional libraries acquire licenses from publishers or intermediaries for the right to distribute this copyrighted digital content. This practice differs from lending physical copies, and it allows libraries to lend out multiple copies of a single title for a set fee.

The core problem in Hachette v. Internet Archive is that out of the more than 1.3 million books copied and digitally transformed by Internet Archive before June 2020, more than 33,000 works were subject to copyright, in circulation, and available for purchase. That means Internet Archive’s copying and digital transformation of these works without the consent of the copyright holder is illegal under copyright law. Despite a tendentious assertion by anti-IP activists that a majority of these works are long forgotten by publishers (either no longer under copyright or out of circulation), the complaint clearly states, “[Internet Archives] produces mirror image copies of millions of unaltered in-copyright (emphasis added) works for which it has no rights and distributes them in their entirety for reading purposes to the public for free, including voluminous numbers of books that are currently commercially available (emphasis added).” In other words, fans of Pride and Prejudice, The Great Gatsby, or other works in the public domain and no longer subject to copyright, or Roald Dahl’s The Gremlins, Thomas Craven’s A Treasury of American Prints, Jensen and Wolfram’s Introduction to Biology: An Ecosystem Approach Laboratory Manual, or other works out-of-print, need not fear EFF’s claims their favorite classic or out-of-print book will be deleted from free online resources. Publishers are not seeking compensation for works in the public domain; they are merely asserting their Constitutional rights over their copyrighted works.

In addition to unfounded claims of “big business” publishers attacking libraries and free resources, Internet Archive and EFF introduced and assert an untested legal theory they call “controlled digital lending” in their attempt to escape compensating creators. According to this theory, entities such as Internet Archive are allowed to disseminate digital works in the same manner as a traditional library lends physical books. In other words, one book in stock means only one copy can be loaned out at a time. The basic premise behind controlled digital lending—literally controlling the quantity and means by which digital works are loaned out—has some merit if the digital works are legally acquired, creators are fairly compensated, the principle is narrowly applied, and technical controls prevent unauthorized copies. However, Internet Archive and EFF have repeatedly proven they have no intention of abiding by the rules of this theory or applying the concept narrowly; EFF seeks to freely share all forms of content (books, movies, games, etc.), whether legally or illegally acquired. This is unsurprising considering EFF’s perpetual goal is free content at the expense of creators.

Imagine if an entity you have no relationship with allowed strangers one at a time to access and use your home, car, toothbrush, etc., without your permission or consent, and you could not request they pay you for rent, gas, or a new toothbrush. It is generally agreed that taking a car—or other form of tangible property—without the owner’s permission or knowledge, is stealing regardless of whether the car was parked in a public place. Even governments have takings clause provisions that require compensating property owners. This basic concept of theft, however, becomes convoluted when it comes to IP rights.

Many anti-IP advocates propagate the absurd idea that anything made available to the public is implicitly available for the public to use as it wishes. However, this notion is a blatant violation of copyright law. The U.S. Constitution states IP exists, “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” In other words, creators have a say in how their works are disseminated and whether they want to be compensated for their creations. In other words, the owners of the car (or IP) have the opportunity to explicitly state whether they want you to use their property for free or if you have to pay them to refill the tank. Creators such as Radiohead, Taylor Swift, and Chance the Rapper have each taken very different approaches to IP protection and the dissemination of their works, but the important thing to remember is that each of these creators made explicit (not implicit) decisions concerning their works.

In a viral marketing campaign, the Grateful Dead explicitly chose to allow the group’s fans to record and share tapes of their concerts, and Internet Archive has significantly benefited from the band’s decision. The problem in the Hachette v. Internet Archive case is that the copyright owners were not consulted in the digitization of their works, nor were they given a choice whether or not to share their works without compensation from the entity disseminating them. Rather, anti-IP advocates are vilifying these rightsholders, hoping to silence them and prevent them from asserting their rights. Not all of the copyrighted works digitally copied by Internet Archive are in question, either. Some copyright owners have chosen not to participate in this lawsuit, and that is their decision to make. But anti-IP advocates should not bully or attempt to shame those IP owners who choose to enforce their Constitutional rights.

Internet Archive claims it can create digital copies of any work it has physical access to, but the right to create derivative works is reserved for rightsholders under copyright law. It doesn’t matter if Internet Archive came by the physical books legally; what the organization did with the books while they were in Internet Archive’s possession was illegal. The organization copied word for word, page for page each of its books. The only difference is the format in which they were presented. Simply transferring mediums (i.e., from physical to digital copies) is derivative but not transformative, and such works do not qualify under fair use. Internet Archive also copied books borrowed from other libraries, meaning it asserts continued ownership over digital copies despite only maintaining temporary control over a physical copy. When the libraries continue loaning out physical copies of these books at the same time Internet Archive loans out its digital copy, both entities are double-dipping.

Imagine if your house guest copied your key and loaned it out for others to access your property free of charge, but only one guest at a time (more if there’s an emergency). There is absolutely no reasonable interpretation of controlled digital lending that would allow this type of unrestricted copying.

Internet Archive’s website states, “We began a program to digitize books in 2005 and today we scan 4,000 books per day in 18 locations around the world.” The organization’s stated goal of serving the disabled and providing universal access to works is certainly noble, but that is not the issue here. Also, this goal must be accomplished via legal methods. Digitizing and disseminating written works is not new, and it has been done legally in cooperation with rightsholders for over a decade. Unfortunately, Internet Archive’s position in this case outright flouts IP and traditional property protection laws.

The organization also invokes the COVID-19 pandemic as an emergency excuse for its actions, both in copying and breaking its own controlled digital lending assertions. However, it engaged in the copying and dissemination of written works for more than 15 years before the pandemic began. Moreover, just about every local public library in America enables patrons to legally check out digital books, which many people did during the pandemic.

Even though Internet Archive could have acquired licenses from publishers or worked directly with rightsholders, they chose to violate copyright law by creating derivative works of books subject to copyright. This case focuses solely on a fraction of the millions of works digitized and disseminated by the organization. The nature of Internet Archive’s copying and dissemination violates the rights of creators and rightsholders. Claims of pandemic emergency necessity and controlled digital lending are contradicted by the organization's own actions.

Internet Archive is not a noble, Robin Hood organization being bullied by the hierarchy for helping the poor and needy, despite the story EFF and its anti-IP allies continue to spin. Rather, this is a simple case of an organization stealing from creators to justify its “information wants to be free ideology,” then trying to redirect blame, hoping to garner sympathy for its wrongdoing rather than simply compensating rightsholders.

Courts should not abide such theft. The Constitution explicitly grants creators the right to control their works for a limited period of time, and anti-IP advocates must not be allowed to violate this right to gain free stuff under the guise of “for the public good.”