In honor of Open Access Week, and in particular this year’s theme of structural equity, we wanted to highlight an Internet Archive project that does extraordinary work in favor of access to know. The bad news: this project is also under legal threat. The good news: the Archive, with the help of EFF and Durie Tangri, is fighting back.
The Archive is a non-profit digital library with a guiding mission for almost 25 years: to provide universal access to all knowledge. The democratization of access to books is at the heart of this mission. That’s why the Archive has been working with other libraries for almost a decade to digitize and lend books through Controlled Digital Lending (CDL).
This service was particularly critical during the pandemic, but will be needed long afterward.
CDL allows people to check digital copies of books for two weeks or less, and only allows customers to check that much digital copies such as the Archive and its partner libraries physically own. Lending is on a “loan-specific” basis: if a digital copy is borrowed from one reader, the physical copy is also not available to other readers. CDL uses DRM to enforce this limited access, but it’s still true that anyone with an Internet connection can read digital versions of great works in human history.
This service was particularly critical during the pandemic, but will be needed long afterward. Many families cannot afford to buy all the books they and their children want or need to access, and are turning to libraries to fill the void. Researchers can locate the books they need, but find they are out of print. Others just want access to knowledge. And all of these people may not be able to visit the physical library that houses the books they need. CDL helps solve this problem, creating a lifeline to reliable information. It also promotes research and learning by keeping books in circulation when their publishers can’t or won’t.
But four giant publishers want to shut down this service. Last year, Hachette, HarperCollins, Wiley and Penguin Random House sued the records, alleging that CDL cost their businesses millions of dollars and poses a threat to their businesses. They are wrong. Libraries have paid publishers billions of dollars for books in their print collections. They invest enormous resources in digitization in order to preserve these texts. CDL simply helps libraries ensure that the public can make full use of the books that libraries have already purchased and paid for. Digitization enables the preservation of physical books, increasing the likelihood that books in a library can be used by patrons. Digitization and making books available 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 who strive to serve their clients online, as they have for centuries in the brick and mortar world. Governments around the world have recognized the importance of this mission and have adopted a host of rules to ensure that copyright law does not get in the way. It is a shame that these publishers prefer to spend money on lawyers rather than promoting and improving access to books. Worse yet, the publishers want the Archives to defend CDL with one arm tied behind its back. They claimed that CDL is hurting their results, but are doing their best to limit investigations into this alleged harm. For example, publishers have often spoken of CDL with a powerful trade association in the industry, which presumably included discussions of such damages, but they refuse to share these communications based on claims of privilege that simply do not pass. the smell test. Meanwhile, members of Congress recently launched an investigation into e-book licensing practices that may shed light on the e-book ecosystem and onerous restrictions that hamper the ability of libraries to serve their customers.
In this context, the Archive has made every effort to ensure that its uses are lawful. The CDL program is protected by the doctrine of fair use of copyright, reinforced by traditional library protections. More specifically, the project serves the public interest in terms of preservation, access and research, all classic fair use objectives. All the books in the collection have already been published and most are out of print. Customers can borrow and read entire volumes, sure, but that’s what borrowing a book from a library means. As to its effect on the market for the books in question, the books have already been purchased and paid for by the libraries that own them or, in some cases, the individuals who donate them. The public benefits tremendously from the program, and rights holders 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 invites everyone to use its resources, while respecting privacy and dignity. readers. EFF is proud to represent the Archives in this important fight.
EFF is proud to celebrate Open access week.