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CDL: The AAP is Wrong About Everything

In going through these arguments, I’ll also be drawing from a few other sources, in order to give a more comprehensive description of the arguments being made.

The Authors Guild Amici Curiae Brief is a document submitted to the court by The Authors Guild in support of the plaintiff’s argument.

Reflections from the Association of American Publishers on Hachette Book Group v. Internet Archive: An Affirmation of Publishing is a victory-lap publication from the AAP, published after the summary judgement in favor of the plaintiffs.

And there’s also EFF, Redacted Memorandum of Law In Support of Defendant Internet Archive’s Motion for Summary Judgment, written by the EFF in support of the Internet Archive, and whose arguments overlap a lot with mine.

Alright, there’s never anything more damning than their own words, so let’s just look at what it is they said here.

Willful Mass Infringement🔗

Hachette Book Group v. Internet Archive Defendant IA is engaged in willful mass copyright infringement. Without any license or any payment to authors or publishers, IA scans print books, uploads these illegally scanned books to its servers, and distributes verbatim digital copies of the books in whole via public-facing websites. With just a few clicks, any Internet-connected user can download complete digital copies of in-copyright books from Defendant.

So, right off the bat, the core complaint is false. The books are lawfully purchased with payment made in full to authors and publishers, the scanning isn’t illegal, and the loaned files aren’t complete copies. Publishers want CDL treated like an organized criminal enterprise not because they think it is one, but because they want simple-but-wrong rhetoric to attack it with.

Vitally, the Internet Archive certainly isn’t engaged in “willful mass copyright infringement”: their commitment to controlled digital lending shows that they’re doing everything they can to stay within the constraints of copyright. Each lend is designed — at significant expense! — to be non-infringing.

Let’s give this the sniff test. In the ebook space, “willful mass copyright infringement” looks like pirating the book files publishers sell as a vehicle to run sketchy ads on a download page. Nothing could be further from the behaviour we see from IA! Moreover, the Internet Archive isn’t running some shadowy criminal enterprise through overseas proxy companies. Not even counting the whitepaper process, the Internet Archive has been open and collaborative about its book archival work and has a whole blog category dedicated to documenting the work. The IA is a legitimate service provider with none of the hallmarks of criminality, and it’s been open and honest about its work.

But those optics — all of which are in IA’s favor — are irrelevant compared to the hard facts of the work. Internet Archive’s work in CDL, library services and book scanning, enforcing the owned-to-loaned ratio shows them willfully respecting copyright, not violating it. IA is only willfully engaged in behaviour publishers don’t like, and this lawsuit falsely demands that this is the same thing as criminality.

Controlled Digital Lending Isn’t Controlled🔗

Authors Guild Amici Curiae Brief If Open Library’s practices are found legal, any website calling itself a library could digitize or copy any in-copyright creative works and “lend” out copies, including in a manner that actually downloads the copies on users’ computers. This will gut copyright law and, as a result, will greatly diminish our country’s literary and other creative output.

In this “argument”, the Authors Guild is just pretending that they don’t understand that controlled digital lending is controlled, because that’s the core fact that proves them wrong.

The idea that finding CDL acceptable would enable real piracy is just obviously untrue, to the point where it’s difficult for me to put into words. Finding that Open Library’s copyright-respecting CDL lending is legal does not also somehow make book piracy websites legal by proxy. Ruling that controlled digital lending is legal wouldn’t also rule that freely distributing copyrighted works without the protections of CDL is equally legal. The argument here is “if you allow legal things, that’s literally the same as allowing crimes”. It’s absurd.

So why are the complainants making such fools of themselves here? Why ignore the controls in place? Why refuse to acknowledge the concrete, technical measures differentiating CDL from simple piracy? They’re ignoring the controls because they’ve worked out that it defeats their entire argument. And, apparently, they’ve opted here to just close their eyes and pretend they can’t see it, like children.

DRM is insufficient protection🔗

Hachette Book Group v. Internet Archive Without protective measures, digital files can be copied perfectly, instantaneously and in practically infinite quantity at virtually no cost, and distributed all over the world in a split second.

IA’s business model for the Website—which is essentially to freely disseminate scanned copies of every physical book it can lay its hands on—is parasitic and illegal.

Again, this is just a lie. IA uses protective measures on CDL copies: measures with the same level of security publishers use for their own book rentals. CDL copies are controlled, and it’s lying to imply otherwise.

Hachette Book Group v. Internet Archive … Publishers have established independent and distinct distribution models for ebooks, including a market for lending ebooks through libraries, which are governed by different terms and expectations than print books. IA’s end-run around these differences and restrictions is aggressive and unlawful.

The creation, publication, and distribution of books is an ecosystem. IA disaggregates itself from this ecosystem, ignores the law, and asserts that its goal of providing free copies of books somehow excuses it from any responsibility to those who have created the works and hold exclusive rights under the Copyright Act.

This is it, exactly. There only exists one “ecosystem”, established unilaterally by the choices of publishers. CDL does free libraries from the existing, captured ecosystem, and this is exactly what the publishers are upset about. They know the existing ebook system is captured and their “established expectations” give them a vast, monopolistic advantage the legitimate book market doesn’t.

But copyright does not grant publishers the right to impose and orchestrate a command economy. Publishers are not tzars with complete top-down authority over the economy for all books. It’s fine that they set an implicit norm, but there is no right for them to enforce their “established” distribution models by proclamation. If people can use their own property to offer an alternative without infringing on any rights actually reserved to publishers, like reproduction, publishers have no right to prevent their little market norms from being challenged.

But you’d never guess that listening to them!

Hachette Book Group v. Internet Archive In a related fashion, copyright law gives authors and publishers, as rightsholders, exclusive control over how to publish their content in order to allow book markets to develop and thrive. This includes empowering publishers to tailor their means of distribution and terms of sale or license depending on the format or medium in which a particular title is released. These carefully calibrated markets are precisely the markets that IA seeks to disrupt and destroy by arrogating to itself the right to engage in bulk digitization of the Publishers’ in-copyright books without a license … and by distributing the resulting illegal bootleg copies for free over the Internet to individuals worldwide.

This is the power grab. Publishers can tailor their means of distribution, sure, but this complaint is trying to transform that into power over others. The right publishers are trying to assert here is to “calibrate the market”, even when that means claiming power over their competitors or power to retroactively control books they’ve already sold. Here, publishers are ignoring the fundamental fact that IA is using the rights it has to engage in lawful book-lending in order to grab power over the entire market’s “calibration” — they’re demanding power over market outcomes.

And it’s too late to claim they’d be reasonable with this power; we’ve already seen that they want used books destroyed just to juice new sales! Such power does not exist under copyright, and even if such power could conscionably exist they’ve already proven themselves comically unfit to hold it.

Digital books are fundamentally different in terms of portability and durability🔗

Hachette Book Group v. Internet Archive As a matter of markets, IA’s one-to-one conflation of print and ebooks is fundamentally flawed. Digital books are inherently different from physical books. They can fly around the world in a second; they do not degrade over time as physical books do; and they require devices to read them. For these reasons, the Publishers have established independent and distinct distribution models for ebooks, including a market for lending ebooks through libraries, which are governed by different terms and expectations than print books. IA’s end-run around these differences and restrictions is aggressive and unlawful.

Reflections from the Association of American Publishers on Hachette Book Group v. Internet Archive: An Affirmation of Publishing … In rejecting both the theory and operation of IA’s CDL defense, the Court recognized that digital books are inherently different from physical books, including in the ease of distributing them worldwide in an instant.

This hits a lot of points I’ve explained already.

  • CDL loaned books are not equivalent to publisher-controlled ebooks. One’s a temporary format shift of a remote, physical, owned book, and one is a high-quality, specially produced piece of licensed software that customers aren’t allowed to own. IA is not challenging “ebooks” with Controlled Digital Lending.
  • CDL is an end run around Overdrive, because Overdrive is a problem to be avoided.
  • An end-run around a problem monopolists create is not unlawful in and of itself; if it doesn’t violate a real, defined right, that’s just a functional market.
  • Publishers are not tzars in charge of a command economy for all books, and don’t get to enforce their “established” distribution models if people can use their own property to offer an alternative without infringing on any rights actually reserved to publishers, like reproduction.

But let’s investigate this argument about the distinction between print and ebooks a bit further. Let’s also ignore the CDL/ebook false equivocation, and use “digital books” as an umbrella term that includes both “ebooks” and CDL copies, even if that does break my rule not to make other people’s arguments better for them.

The complaint lists two1 qualities that make digital books distinct in a way they argue affects their distribution models: portability (“they can fly around the world in a second”) and durability (“they do not degrade over time as physical books do”). So: are digital books more durable and/or portable, and does that matter?

Durability?🔗

First, we can actually rule out durability as a concern altogether.

True digital master copies can be vastly more durable than hard copies, especially paperback books. Because they can be so easily copied, it’s possible to create redundant storage, so even if a copy is damaged, the book can be preserved. The cost of preserving physical books can be seen in IA’s own physical book archive; each book needs an environment with safeguards, including fire protection, flood protection, and climate-control, just to slow down the process of degrading. For digital copies, the space required to store masters is vastly reduced, and degradation can be prevented entirely by using redundant storage replicated across multiple locations.

But what publishers are concerned about is economic durability, not theoretical archival. How long does the copy retain value in the market?

Physical books are damaged over time, especially paperbacks, and so they eventually become unusable and worthless. This puts a natural limiting factor in how many people can use a book before it deteriorates, and they need to purchase a new copy if one exists. This is especially pertinent for libraries that see heavy (and sometimes irresponsible) use: books will be regularly damaged, and whenever that happens a library will either need to buy a copy to replace it or lose the book from their collection.

For digital books, both publisher-sold ebooks and CDL lending copies have no economic durability whatsoever, because both are locked to specific users, and in the CDL case, locked to a strictly specified window of time. There is, by design, absolutely no economic movement in either case.

But in the wider digital space, “market value” is kind of an incoherent concept, because the media cabals have generally succeeded in preventing individuals from independently owning or trading any sort of digital content. Digital files are never treated as legitimately economically durable this way, except in the case of physical media where the files are expected to be bound to a specific physical object. And since those can’t be copied, there’s no obvious advantage in that case. Physical digital media is still subject to deterioration, including new dangers in the form of magnetism and scratching. Neither a CD nor a book will survive a fire.

So in the case of mass-market digital media, libraries (and other users) really see no benefit in terms of durability, as they are denied the ability to use redundant storage to maintain the condition of the copy. Given current restrictions and DRM there’s no obvious durability benefit from being “digital”.

Portability🔗

So that’s a no for durability. What about portability?

Digital books are certainly more portable than physical books. In fact, it’s arguably that portability which makes the Open Library practical in the first place: a hypothetical “Netflix-by-mail for books” that provided the same service but used the less-portable physical versions would be vastly more expensive due to labor and distribution costs, and would almost certainly be a cost-prohibitive service for a non-profit library to provide for free.

So digital books are definitely more portable, and libraries are positioned to use that portability to create new value for its patrons. But does that increased portability say anything about the rights people actually have, or the rights they should have? No, because this is a difference in scale, not kind.

The technologies in use may push a practice over today’s waterline of practicality, but what practices are practical is constantly changing, and not something we can or should pin definitions on. It still takes time to share files, even if it’s much faster. It still costs space and power to store files, even if it’s much smaller. There has been no paradigm shift that removed a cost, they’ve just been reduced and shuffled around, as should be expected by technological development. (And as should be desired: despite possible impacts to a corporate bottom line, reduced costs to provide the same value is objectively good.) What’s changed, again, is crossing that waterline of practicality.

And it’s that practicality — that it can happen at all — is what offends the publishers. Is this a fundamental difference, like the argument requires? No. Digital books are different, sure, but not in any way that affects whether libraries should be permitted to lend them or not.

It’s reproduction, not format-shifting🔗

So, credit where it’s due, this is the key issue this entire complaint hinges on. Is digitally lending owned-to-loaned CDL copies a temporary format shift, or is it a reproduction that infringes on that exclusive right? It makes sense that this would be the most important issue, as the “reproduction right” is meant to be the extent of copyright in the first place.

The complaint, of course, is that CDL involves making infringing reproductions:

Hachette Book Group v. Internet Archive …the first sale doctrine is carefully confined as a limitation on only the distribution right. It permits the owner of a copy to distribute the particular copy that has been lawfully acquired—for example, as in the secondary sale of a hardcover book or a painting—but it provides no exemption from the copyright holder’s exclusive right to reproduce a work. …

— Note that describing the first sale doctrine as a “carefully confined limitation” is exactly opposite the truth: the enumerated limitation is copyright, not the exhaustion of rights. Discussed previously, just note that they’re lying here. —

Hachette Book Group v. Internet Archive … The lynchpin of IA’s whole operation is that it scans a print book to create a digital file—a classic unauthorized reproduction of a work that puts the application of Section 109 clearly out of reach.

Internet Archive Opinion & Order Although Section 109 entitles IA and its Partner Libraries to resell or lend their lawfully acquired print copies of the Works in Suit, “unauthorized reproduction,” which is at the heart of IA’s online library, “is not protected” by § 109(a).

Statement on Flawed Theory of “Controlled Digital Lending” - AAP AAP finds it highly unlikely under current law that CDL-sanctioned practices would be shielded by either the first sale doctrine under 17 U.S.C. §109(a) or the fair use doctrine under §107, because such practices involve making and transmitting new digital copies of print books.

Reflections from the Association of American Publishers on Hachette Book Group v. Internet Archive: An Affirmation of Publishing The Court also rejected Internet Archive’s argument that the underlying values beneath the first sale doctrine should be imported into the fair use analysis, since that doctrine (codified by Congress) only permits a lawful owner of a print book to lend, sell, or otherwise redistribute it, not to reproduce it, including in a different medium.

As this holding reaffirms, injecting unauthorized digital copies of an author’s book into public circulation is not allowed. The public policy reasons for this conclusion are not new.

The argument here is that creating a digital file from a print book is necessarily an unauthorized reproduction of a work, regardless of context or purpose. There can be no consideration of whether the use is protected or lawful, because the creation of a digital version where there was not one before constitutes reproduction, in-and-of-itself. The question is: is that true?

Format shifting refresher🔗

As I discussed, CDL works by using format shifting. Libraries take the books they own and use temporary digital formats to exercise their property in a way they’re already entitled to: book lending.

Format shifting is like ripping your own CDs to MP3s so you can listen to the same song you already own on another class of devices. You own the CD, you have the right to listen to those songs, but the player doesn’t have a CD drive. The files existing on your phone are the same songs you own; that alone isn’t “reproductive” behavior that infringes on the reproduction right.

No injected copies🔗

Reflections argues that reproduction of the work is evidenced by “injecting unauthorized digital copies … into public circulation.”

This is a fair description of the reproduction right: the copyright holder has the right to print as many or as few copies as they choose, and “reproduction” entails manufacturing new copies that in turn changes that public circulation. This is contrasted with simple distribution. The right of distribution — selling, lending, giving, or disposing — is inseparably coupled to ownership. Note that the reserved reproduction right is not control of the circulation; though such a change could be caused by something else, a change in circulation is a natural consequence of reproduction.

But this point sabotages the argument against CDL. CDL specifically refrains from “injecting” any works into circulation. Remember, CDL requires a 1:1 owned-to-loaned ratio: for each one copy owned by the library, only one digital version can be loaned at a time. CDL doesn’t inject any new copies into circulation: CDL copies are the same copies the library owns.

By use of example, I can easily show that you do have the right to make incidental new digital copies in the process. Let’s say you prefer audiobooks to ebooks, so you can listen to the book while you’re working. But the book you’re currently reading isn’t available as an audiobook, so you’re using an ebook version.

You can still listen to the book while you work, though. Just have text-to-speech read the book out loud. Most phones and computers support this natively at a system level, so it would work with any text, and books are text. With text-to-speech, you suddenly have an ephemeral artifact that has some of the same functions of first-class audiobooks sold by the publishers, but made yourself using a different format you had access to.

Does this sound familiar? It’s exactly equivalent to CDL’s ephemeral copies.

Is the quality on the ephemeral copy as good as the product sold by the publishers? No; professional typesetting and ebook features are superior to PDF scans, and professional voice-acting is superior to text-to-speech.

Does the existence of an alternate version of the book existing violate an exclusive right to control the existence of such formats? Obviously not; I’m allowed to read physical books I own aloud, and that doesn’t violate any “auditory right” even though it creates an auditory format floating in the air. The same would be true with ebooks, whether it’s read aloud by a person or by a text-to-speech program. And the same is true of CDL copies of digital books: publishers have a right to control reproduction, but have no such right over ephemeral format shifts.

Is the ephemeral form conversion a violation of publishers’ right to sell you a different product? No. You have the right to read the book, and it doesn’t matter if you shift it to a different format — even a format publishers sell themselves — as a step in doing this.

Is using an ephemeral form conversion to share the book with a second party an illegal reproduction? Again, no. If I own a book, I have the right to read it aloud to someone else. If I have the right to let someone else read my ebook, I can use a format conversion to do that if it’s needed for accessibility (i.e. the other person is blind.) And if I have the right to loan my physical book to someone else, I have the right to use a temporary digital copy to do that so long as it remains ephemeral and isn’t a reproducible copy: this is how CDL works.

Again, publishers simply have a business model predicated on people being prohibited from format-shifting their property. The right itself does not exist, and the idea that it should quickly breaks down upon inspection.

Fair use exemptions🔗

But even without format shifting, this whole train of thought is immediately proven faulty by looking at how fair use works. Again, the argument here is that creating a digital file from a print book is necessarily an unauthorized reproduction of a work, regardless of context or purpose. Publishers are arguing there is no room for consideration of the use, because the digital “copy” itself constitutes a violation.

Copyright law itself strongly disagrees with this premise. The Fair Use doctrine specifically says even reproductions are legal and non-infringing if they pass a test regarding their context and purpose:

17 U.S. Code § 107 Notwithstanding the provisions of [copyright], the fair use of a copyrighted work… for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

So this desperation we see in the complaint to hastily judge CDL as illegal on the basis that a reproduction is involved is wrong, not only because a reproduction is not involved, but because even if it were, that wouldn’t be a sufficient criterion either!

Applying accessibility format shifting rationale🔗

So, about that “context and purpose”.

The fact that the Internet Archive is specifically format shifting physical books in order to make them more accessible — specifically, accessible quickly and over large distances — makes their case even stronger, because shifts for accessibility purposes are given additional legal protections.

17 U.S. Code § 121 - Limitations on exclusive rights: Reproduction for blind or other people with disabilities … “authorized entity” means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities;

…it is not an infringement of copyright for an authorized entity to reproduce or to distribute in the United States copies or [recordings] of a previously published literary work or of a previously published musical work that has been fixed in the form of text or notation if such copies or [recordings] are reproduced or distributed in accessible formats exclusively for use by eligible persons.

This specific operation of transforming a work into a more accessible copy for library purposes isn’t new, and the standing principle is: yes, of course you have the right to do it.

Now, the text of the law here is unfortunately limited. Instead of explicitly creating a general principle, they describe the principle and then enumerated the carve-outs that applied. So I’m not claiming that law applies here, but I am saying there’s a specific philosophical and legal principle already in the law that we can apply elsewhere.

While the law does not directly enforce the principle, the courts can see the accessibility rationale and apply it as appropriate. An example of this principle being done properly — where the same accessibility rationale was used in invalidating a copyright claim — is Authors Guild v. HathiTrust.

This is summarized elegantly by the EFF in their memorandum:

EFF, Redacted Memorandum of Law In Support of Defendant Internet Archive’s Motion for Summary Judgment In [Authors Guild, Inc. v. HathiTrust], for example, the court addressed a copyright claim against a nonprofit library book-digitization program that made books available to the visually impaired but did not fall within the specific copyright exception for visually impaired people (the Chafee Amendment). As part of its fair use analysis, the court reasoned that “the Chafee Amendment illustrates Congress’s intent that copyright law make appropriate accommodations for the blind and print disabled.” … That intent, the court concluded, supported a fair use finding. … Likewise, here, the existence of Section 109 and its intent to secure libraries’ right to lend books they own favors a finding of fair use.

It’s precisely the same: publishers don’t make and refuse to sell an accessible product, so legally-purchased copies are made accessible in a way designed not to disrupt the market.

So, instead, CDL exists. Libraries make and distribute ephemeral digital versions of books they own in order to accomplish the goal of lending effectively while minimizing economic harm to publishers. It’s format shifting! Great stuff.

It’s not format shifting because it isn’t the copy that’s made available remotely🔗

There’s an odd argument made in the Amici Curiae brief that CDL doesn’t represent format shifting at all, because the material being made available doesn’t correspond to the physical copy:

Authors Guild Amici Curiae Brief Open Library in fact does nothing other than change the format in which a literary work is embodied, so that the work (not the copy) can be made available to readers in a different location.

This tries to make a distinction between the work and the copy, saying that in the case of controlled digital lending, it is the work itself being made available to readers, not the specific copy in question.

If we accept that such a meaningful distinction exists, then what are CDL copies? Are they faithful reproductions of the original literary work in some platonic state, or are they simply different views on the discrete copies of the physical books they represent?

The methodology of the scanning process answers this very intuitively: CDL copies are simply formats of the original book, not pure copies of the work. Given the physical scanning process, this should be intuitively clear, but there are hard tests that show the same result. If there were a defect in the original work, or a page were damaged, or letters on the copy were rendered illegible by a stain, those exact defects would be equally present in the CDL version.

The Amici Curiae brief really shoots itself in the foot by trying to make this argument. What I’ve presented as a counter-argument here isn’t something I would usually make at all, because it’s predicated on such an unclear, almost philosophical point. But, given that they’ve granted the distinction matters, that argument resolves soundly against their case.

Hachette Book Group v. Internet Archive At the same time, it is a basic tenet of copyright law that the copyright holder retains the exclusive right to decide whether or not to publish a copyrighted book in a digital format

IA interferes with the author’s and publisher’s right to decide which works will be distributed in which format and at which time. For example, as noted above, some works or authors are ill-served by the conversion of print editions into digital works, either for commercial or artistic reasons. IA has appropriated to itself this right that belongs exclusively to the rightsholder.

The argument here, very simply, is that “the conversion of print editions into digital works” is a “right that belongs exclusively to the rightsholder.”

Seen again, in plainer language, in Reflections:

Reflections from the Association of American Publishers on Hachette Book Group v. Internet Archive: An Affirmation of Publishing One of the most basic rules in the Copyright Act is that copyrights are divisible. The divisibility empowers authors to license a plethora of rights, formats, markets, and derivative uses that derive from their creative expression, and to strive to do so over the course of many years. The CDL theory frontally devalues the potential of the copyright bundle by presuming that physical and digital formats are systematically interchangeable.

This is so tantalizingly close to being a real argument. The right to produce new ebooks and right to produce new physical books are both owned, separately, by the publishers. This is true. IA does not have the right to manufacture new copies of books, even if it owns them.

But the scans are not “new copies” of books, they are conversions, byproducts of the act of lending, which IA has the right to do! And I don’t even have to be the one to make this “conversion” distinction, because the formal complaint actually grants this itself, in the excerpt above: they complain that “conversion of print editions into digital works” is a violation of an exclusive right they reserve.

Since they’re specifically making a claim about conversion here, this is another straightforward case where the short answer is a very straightforward “no, it isn’t.” The copyright holder has the right to control what forms are created (reproduced), but not what forms those copies take, and therefore do not have absolute control over what kind of items are in market circulation.

The same argument, in the Amici Curiae:

Authors Guild Amici Curiae Brief The copyright statute allows the owner of a lawfully-made physical copy to dispose of that copy as they wish, 17 U.S.C. §109; IA’s logic would extend that rule to allow the recipient of that physical copy to make additional copies of the underlying work in different formats, meaning that a copyright owner would have no ability to license rights separably

The Copyright Act instead rejects any such mandatory bundling of print publication rights and other economically significant rights. There is no compulsory license for digital derivatives of literary, pictorial or other works of authorship, let alone one that is triggered simply by virtue of print publication of such works. Those rights are separate, and as a practical matter they are separately conveyed by authors.

It is true that there is not — currently — any compulsory license for digital forms of books. The sleight of hand here is the conflation of the right of original production and reproduction of works (a right copyright holders reserve) and the right for works to exist in such a form at all.

It’s not true that IA is advocating for owners of physical copies to be freely able to make additional copies. However, they are advocating that owners be able to express the copies they own in different formats, in order to accomplish uses the rights of ownership already entitled them to perform. Publishers are objecting to this on the basis that they should have the right to license right for the existence of copies — not only production of copies — for all formats individually.

Declaration of Chantal Restivo-Alessi, Harper-Collins CDO In our view, Internet Archive has no right to take the benefits of the digital medium for itself without compensating the parties who own the rights and have created the works.

IA has, of course, compensated authors for the books, because the books are legally purchased copies. So the “rights” in “parties who own the rights” here refers to the right of “ebookness” separated from both the content of the book and the method of creation. It should go without saying, but the “benefits of the digital medium” in the abstract are not something you have to pay publishers to use! They have no general right over format improvements!

Authors Guild Amici Curiae Brief
IA’s offering unauthorized derivative versions of ebooks through Open Library will significantly interfere with authors’ abilities to grant exclusive electronic text rights to publishers and other licensees. This material interference is not without financial consequence, as it would severely diminish the value of these rights for authors because authors will no longer have the ability to grant exclusive ebook rights to potential licensees and fully exploit their rights in each separate format, which in turn will result in a loss of market opportunity and revenue streams. By engaging in massive and uncompensated “format-shifting” from print books to ebooks, IA is robbing authors of their right to separately license the rights that Congress created for them.

Most of these arguments are arguments against libraries in general: “if libraries can lend copies, that reduces sales for us, which means it’s wrong, because we’re entitled to as much money as we ask for.”

But this is once again conflating the exclusive right to produce new copies with an imagined right to prevent modified copies existing at all. The first is legitimate, the second is not.

The copyright holder chooses what they create, and they retain exclusivity to specific, enumerated rights over the copyrighted material. But trying to exercise control over other rights, which are held exclusively by the purchaser, is strictly forbidden. So long as reproduction is not involved, copyright holders specifically do not have authority over what forms specific items they sell take in the future: this is the very essence of rights exhaustion.

Rebinding🔗

I already gave an example of ephemeral form conversion with text-to-speech, which is also an excellent example here because of the desire of publishers to control the audiobook market. But let’s do another.

Borrowing a metaphor from the complaint itself:

Hachette Book Group v. Internet Archive Over hundreds of years publishers have found ways to maintain viable markets for books even as revolutions in publishing have driven changes in format, from leather-bound hardcover books to paperbacks to the paperless ebooks we read on digital devices.

To make the very same comparison the complainants do here, the transformation from physical to digital is like rebinding a paperback book you own with a hard cover. It’s taking a single work that you own, limited by its quantity, but improving its sturdiness and accessibility, making it safer and easier to lend and transport.

I did a rebinding in high school, actually. We had to bring a history textbook to class, but it was painfully heavy to carry around. We were only reading out of the first half of the book that semester, so I chopped off the spine and had the two halves bound as loose-leaf in slim 3-ring binders. It was a tremendous help for me, and it certainly didn’t infringe on some exclusive right to sell me a theoretical loose-leaf version of the textbook. What’s more, I owned all those pages, and could give away the binders if I wanted!

Restricting this is wrong🔗

Of course you have every right to do this, both in the text-to-speech and rebinding examples and in the reality of CDL. Publishers can’t argue that it’s illegal to put paperbacks in new covers, even if they want to keep books artificially fragile, prevent lending, or sell you a second, hardcover edition. And — in my three-ring case — they couldn’t argue that damaging a book and selling it afterward is illegal either, or else every used copy of the book would have distinct wear and therefore be a “new product.” Publishers’ desire to restrict this makes perfect sense from their point of view, of course: it’s a way to reserve more power and make more money. But property rights and copyright itself tells us clearly that it’s unreasonable, so we have to shut down that harmful instinct, not humor it.

Admittedly, it is true that CDL copies existing doesn’t contribute directly to publishers’ immediate interests, and the possibility of “unauthorized” formats existing weakens publishers’ monopoly power, very slightly. But that power came from maintaining control over already-sold works and price discrimination. It was never anything they were entitled to, it was simply part of their business model.

No, publishers aren’t trying to protect the copyright over their work. They can’t content themselves with that. If you modify your own copy, they want to own that modification too! They want to claim the right to repossess your own book and sell it back to you if you make it incidentally better.

This is like renting DVDs, which is also wrong🔗

OK, now let’s do a silly one.

Reflections from the Association of American Publishers on Hachette Book Group v. Internet Archive: An Affirmation of Publishing … CDL has no containable limiting principle. Under the theory, it would also be okay to publicly stream and distribute copies of music and films if the CDs and DVDs in possession (priced in the original markets as physical works) are held in a shipping container.

Although they use the very evocative phrase “no containable limiting principle” to describe their objection here, note that they immediately jump to describing specific limiting criteria — ownership of physical media — that would limit their hypothetical scenario.

And the scenario they lay out here as a catastrophic implication is perfectly fine. In fact, functionally, this is exactly equivalent to how Netflix originally worked. They purchased DVD copies of media, which they then owned outright. Then they held those in storage until they were rented out, one at a time, to customers who could view them without any involvement from the publishers.

Copyright holders hated this business model when Netflix did it2, of course, for the same reason publishers are angry at the Internet Archive now: they wanted money from it. But not only did they have no right to turn it into new revenue for them, Netflix had every right to profit from the endeavour personally! Of course, unlike Netflix, the Internet archive is a charity, not a business. But in both cases, publishers’ objections were wrong.

The lack of publisher control over the transaction is what’s upsetting publishers; the technology is incidental to the complaint. Adding CDL to this doesn’t change anything fundamental about the Netflix-style relationship, it just makes it more efficient. Only one customer could view a copy at a time, and lent versions would have protection that would prevent them from being copied and redistributed. The only practical difference is that transmitting controlled copies digitally would prevent the enormous waste of resources involved in shipping and distribution of physical copies.

New uses invalidate standing pricing assumptions🔗

Authors Guild Amici Curiae Brief Determining how to separate and monetize their bundle of rights requires authors and their representatives to make careful decisions about how they want their work to be released and exploited (including when, in what territories, and in which formats). In recent years, given the advent of technology that makes reading literary works on electronic devices possible, along with the growing popularity of ebooks, the decision of whether to grant licenses to ebooks and other electronic rights are key considerations for authors and other creators.

The mask slips here for a moment as publishers admit that they are not committing to better outcomes for consumers. They’re asserting a (false) right here to prevent certain works from being digitized at all, which they’d exercise, as they say, whenever they believed it increased their overall monetization.

Declaration of Ben Sevier, SVP of a Hachette subsidiary Pricing is also distinct by formats, driven by different market forces, the different channels that works are distributed in, and different characteristics of the formats and works.

The pricing of physical books takes into account the expected, rather limited extent of distribution. Ebooks are distributed under an entirely different model in order to account for the fact that they have superior distribution capabilities. Internet Archive’s belief that book formats are freely interchangeable threatens Hachette’s business by breaking down the walls between print and ebook formats that make it possible to sell print books in a profitable manner according to their current carefully calculated prices.

Note the callback to regional pricing here, lumped in with the way electronic licenses allow them to squeeze people for more money.

Declaration of Chantal Restivo-Alessi, Harper-Collins CDO We do not price print books with the expectation that they will serve as both print books and ebooks readily capable of free worldwide distribution. Moreover, print books and ebooks have very different characteristics. Ebooks can be reproduced and distributed instantaneously and at minimal cost. For that reason, we set different terms and conditions and pricing structures for commercial ebooks and library ebooks than for print books.

John G. Koeltl, Opinion & Order It is also irrelevant to assessing market harm in this case that IA and its Partner Libraries once purchased print copies of all the Works in Suit. The Publishers do not price print books with the expectation that they will be distributed in both print and digital formats, … and “[a]ny allegedly positive impact of [a] defendant’s activities on [the] plaintiffs’ prior market in no way frees [the] defendant to usurp a further market that derives from the reproduction of the plaintiffs’ copyrighted works.” … The Publishers are entitled to revenue from all formats of the Works in Suit, regardless whether IA lawfully acquired the Works in print first.

I shouldn’t need to explain how perverse the idea that publishers are “entitled to revenue” as an outcome is. They’re entitled to the revenue from specific works they sell, of course, but to declare that they’re entitled to have money coming in regardless of market conditions, regardless of the qualities of the works sold, regardless of what competition exists, regardless of any factor is sheer absurdity.

And yes, that’s the position being advocated for. This is without reasonable qualifiers; publishers are being granted a copyright-predicated entitlement to revenue, for instance, from not only secondhand sales, but also formats that do not and will not ever exist.

For a judge to demand the line always has to go up and the purpose of the government is to ensure it never goes down is to reject every premise that the idea of corporate profit under capitalism is predicated on. It is the brazen notion of privatizing profits and socializing losses, held up not as an argument against capitalism, but as a serious judicial position.

But there is actually a genuinely interesting thread of argument running through all these excerpts, seen in “the pricing of physical books takes into account the expected, rather limited extent of distribution” and “the Publishers do not price print books with the expectation that they will be distributed in both print and digital formats.”

The idea here is that, because publishers did not price physical books with the expectation that they might be used in the future in this specific way, that use “wasn’t covered” by the purchase price of the book. In essence, they’re arguing two things: that the physical rights the customer has over purchased media should be enumerated, and that those limited rights don’t even need to be explicitly laid out, but can be implicit based on the technology that exists at the time of sale.

But interesting isn’t the same as right. Remember how the exhaustion of rights works:

The exhaustion of rights is not an exception to copyright, it is a foundational part of it. Copyright, very specifically, does not create a perpetual, feudalistic monopoly. Copyright’s monopoly grants are discrete and limited, and the “first sale” is one of many extents that define the shape of the right. As the extent of the monopoly right granted to copyright holders, it defines the right itself. The limited monopoly cannot exist at all without extents.

Monopolists predictably argue that they’re entitled to an unlimited, unbounded monopoly by default, and the consumers only have the rights explicitly granted to them in law. This argument — that “first sale rights” need to be enumerated — gets it exactly backwards. Copyright does not confer an unlimited, unbounded monopoly right; the monopoly rights are the artificial privileges that are specifically defined and enumerated in law in exchange for specific concessions. Aside from these special carve-outs, the actual owners of the property — the people who bought the products — own everything else, every imaginable right not explicitly reserved from them.

The argument presented by the publishers here understands the enumeration of rights backwards. The rights the customer has over the media they purchase aren’t enumerated, it’s the copyright holder that reserves a few specific rights, which they’re only allowed by a special legal grant.

But that isn’t the case. And, even if it were, that wouldn’t justify the additional leap of saying that it’s the publisher who gets to decide what those rights are. No, the rights belong to the person who purchases the media. They belong to that person so strongly that the few rights that are reserved to the publisher require the copyright act to do it.

Internet Archive Opinion & Order IA exploits the Works in Suit without paying the customary price.

But what about this issue of paying the “customary price” for a lending copy of the book? Forget rights, is there even a norm the Internet Archive is violating?

No! Of course not. There is no customary price, nor is there a market at all, for book scans or ebooks libraries can own and loan. What there is a customary price for is the physical books libraries lend out regularly, which is… the price of the book. Exactly what libraries are paying for CDL already!

EFF, Redacted Memorandum of Law In Support of Defendant Internet Archive’s Motion for Summary Judgment Libraries in the United States have never needed a license to lend books they own to their patrons. The “customary price” a library pays for the right to lend a book is already included in the price the library paid to buy the book. Here, it is undisputed that Internet Archive owns lawfully made copies of each of the Works.... The publishers have received the price they demanded when they sold the copies that Internet Archive owns and, in return for that price, Internet Archive gained full ownership of those copies. And ownership of a copy by a library includes the right to lend that book to one patron at a time.

So no, there’s not even a publisher-created norm being violated here. It is, very intentionally, business as usual for lending libraries.

Statement on Flawed Theory of “Controlled Digital Lending” - AAP CDL not only rationalizes what would amount to systematic infringement, it denigrates the incentives that copyright law provides to authors and publishers to document, write, invest in, and disseminate literary works for the benefit of the public ecosystem.

Reflections from the Association of American Publishers on Hachette Book Group v. Internet Archive: An Affirmation of Publishing As Judge Koeltl explicitly recognized, the publishers “did not price print books with the expectation that they will be distributed in both print and digital formats” and they “are entitled to revenue from all formats”. This fundamental principle provides an incentive to publishing houses and other media companies to invest in the development of new formats, from ebooks to streaming platforms, all for the benefit and enjoyment of the public.

Invoking the idea of incentives here leads into another error. It’s wrong that CDL copies are equivalent to digital formats, of course, but there’s a more fundamental error here: the idea that violating the assumptions behind incentives to create is intrinsically a copyright offense.

The purpose of copyright is to incentivize creation. At the time of creation of older books, the only rights that existed were to make physical sales, which included reuse and resale of those physical copies. These are sales the IA is giving them by purchasing books! In fact, even when the IA purchases used books, the assumption that the copy could be resold was baked into the original sale price of the book, and is part of the value that justified the original sale price. The understanding of lending is baked into the production of media, and it’s disingenuous to pretend it isn’t or that lending is violating some expectation.

This is yet more evidence that the “CDL” aspect of the complaint is a misdirection, and the true target is the conceit of property and the individual right to lend and trade media. The only rights IA used were rights it was given with the copy of the book. The books were priced with the expectation of being tangible objects that could be lent out, and the lending is what’s being objected to.

So the creation was fully incentivized at the time. But is the purpose of copyright truly to incentivize creation, or — as this argument implies — to act as an unlimited money machine to reward companies for “owning IP”?

Well, if we listen to the TAG/AAP coalition, it turns out they readily agree the sole purpose of copyright is to incentivize creation… when they’re trying to deny someone else money.

Comments of the Authors Guild, Inc. in the matter of Impact of Artificial Intelligence (“AI”) Technologies on Copyright The purpose of copyright is to incentivize the creation of new works—including literary works, which contribute so greatly to our nation’s store of knowledge and culture.

One must inquire whether these outputs [(referring to new works)] in fact need the impetus of exclusive rights, or if sufficient incentives already exist, for example higher up the chain

So why the sudden reversal? Well, obviously, the difference is that in this case, instead of demanding money for itself, TAG is trying to deny someone copyrights. It’s just another reminder that there’s no principle at play; for these people, there’s no consistent model of how copyright should work or how rights must be respected. For them, it’s just argument for the sake of profit, with irrelevant details in the way.

Not a real library🔗

Opponents of the Internet Archive keep making this argument that IA and Open Library somehow aren’t “real” or “legitimate” libraries. This isn’t an argument, it’s just ugly name-calling. But, apparently it’s impossible for anyone to criticize the Internet Archive without trying to get in some insult about how it’s a fake book fan, so let’s deal with that.

Of course, it’s all wrong from the get-go. IA is a library by every definition, including its function but also its legal status — IA is fully registered as a library with the state and federal government. IA is a fully accredited library with all the rights and responsibilities due, objectively.

But that hasn’t stopped anyone from lying about it.

Hachette Book Group v. Internet Archive Despite the “Open Library” moniker, IA’s actions grossly exceed legitimate library services, do violence to the Copyright Act, and constitute willful digital piracy on an industrial scale. Consistent with the deplorable nature of piracy, IA’s infringement is intentional and systematic: it produces mirrorimage [sic] copies of millions of unaltered in-copyright 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.

I want to call special attention to that accusation that IA’s CDL efforts “exceed legitimate library services”, because this claim is so backwards as to show complete disdain for the underlying issues, as is obvious if you think through it. The core, fundamental, inarguable “legitimate library service” is the temporary lending of copies of books the library owns to the public. This is exactly what the Internet Archive is using Controlled Digital Lending to accomplish, and it’s something the publishers suing IA don’t want it to be able to do at all. To say that book lending is an act that exceeds “legitimate library services” is to hold libraries in contempt, and to pretend otherwise (as they do here) is another layer of deceit.

Hachette Book Group v. Internet Archive IA’s activities are nothing like those of public libraries, but rather the kind of quintessential infringement that the Copyright Act directly prohibits.

Hachette Book Group v. Internet Archive There is a vibrant market for selling and licensing ebooks to libraries to provide their patrons with lawful copies of ebooks. But that market cannot be sustained if, rather than patronize their local library, individuals can freely download unauthorized scanned copies of Plaintiffs’ books from IA’s Website.

Of course, it’s not true that there’s a vibrant market for selling ebooks to libraries — publishers’ refusal to do this is why the CDL exists in the first place — but pay special attention to how the complaint tries to “pull out” the Internet Archive from the category of “real library”. The distinguishing factor? Their unwillingness to pay publishers for mere licenses and insistence on instead doing the job of a library. In an attempt to make it look like they’re not also offended at being unable to extract revenue from traditional lending libraries, the suit tries to create this false distinction.

This is a textbook divide-and-conquer fractionalization play, and it’s deeply ugly. “Othering” the IA serves to create the subconscious impression that, since IA is somehow set apart from other libraries, that must make it bad.

But publishers don’t actually care about what fully qualifies something as a “library”. The Authors Guild has no interest in set theory or making sure that the sacred word “library” is being used accurately. Their interest in this side of the conflict is, of course, exploiting public sentiment for profit.

The “not a library” rhetoric serves to trick the book community into attacking each other, so publishers can benefit. It creates a rhetorical tool that lets publishers appeal to library patrons by making it appear that the publishers are somehow defending libraries against an invasive threat. Publishers aren’t suing a library, they’re suing the Internet Archive. Theirs are poisonous, ours are toasted.

Now well-meaning library supporters are tricked into joining a coalition that’s opposed to libraries in general, and by the time people realize what’s happened the damage will have been done. Because the attack is motivated by profit, not principles, no group is excluded from the violence. Siding with publishers today won’t keep them off the backs of traditional libraries tomorrow. Turning on your own people to satiate predators never spares you from being their next target.

Hachette Book Group v. Internet Archive IA exploits the invaluable work that authors and publishers do without investing in any of the effort or paying any of the costs associated with the creation and publication of the books.

Of course, IA does, in fact, invest in all the effort of acquiring books for its library, indexing and identifying copies, scanning them by hand, and hosting the web infrastructure for the Open Library.

The library itself has significant upkeep costs. The web infrastructure for the Open Library represents significant costs in computing power and bandwidth. There are also storage costs, both in redundant data storage for the digital scans and climate-controlled, archival-level storage for every physical book in use by the library. Physical books which, again, are hand-scanned by librarians using machines the Internet Archive spends its resources constructing and maintaining.

Also, because CDL copies are DRM protected, the Internet Archive has additional server costs just for upkeep of lent copies. Specifically, CDL copies use Adobe Digital Edition PDFs, which use ADEPT DRM. ADEPT is a hosted content management service, which means the Internet Archive has to maintain and scale a deployment of Adobe Content Server, software IA has to purchase and license from Adobe which actively tracks and verifies every copy that’s checked out with CDL. This represents an entirely new set of costs that traditional libraries don’t have to bear at all.

Reflections from the Association of American Publishers on Hachette Book Group v. Internet Archive: An Affirmation of Publishing It’s important to note that Internet Archive plays no role in the hard work of researching, writing or publishing books, or for that matter, in creating or sustaining the overall publishing ecosystem, as bookstores and libraries do.

This is the same “doesn’t pay the cost” line, except way worse, because they’ve started making false claims about its value as a research institution. And, in invoking this idea, they’ve opened the door to a whole torrent of reasons why they’re wrong.

What could be more important to the overall publishing ecosystem than the availability of information? What is more important to a researcher than a library institution that provides data? What could a private institution do that more sustains the publishing ecosystem than to restore and rejuvenate its knowledge?

This is The Cycle. Information, built on the foundations of information, private enough to compensate authors but ultimately public enough that more information can be built on it, and so on, forever. This is the publishing ecosystem, not cooking up ways to make more knowledge lost with self-destructing books.

Reflections from the Association of American Publishers on Hachette Book Group v. Internet Archive: An Affirmation of Publishing In the context of the lawsuit, Internet Archive worked hard to describe its mission in the language of multiple institutions (libraries, museums, and archives), but it seems obvious that IA is first and foremost a private archive, as its primary mission is to collect and preserve material, including at-risk works that might otherwise disappear. This is what an archive should do. What archives do not routinely do is loan or transmit their collections indiscriminately to members of the public in contravention of the digital rights of the copyright holder

Lending to the public has more traditionally been the domain of public libraries, which are community institutions devoted to their respective locales, and which make numerous and unique contributions to society. It therefore seems potentially hurtful to public lending libraries to be lumped into the same category as an international Internet platform that is acting as a global collector, hub, and distribution platform for literary works, and one potentially siphoning off their patrons.

There’s a lot wrong here. First and most obviously, this discounts the archival and preservation functions of libraries. Libraries are not simply terminals people use to connect to capitalism. Both public and private libraries are library institutions. This often (but not always) includes lending, but it also includes archival and research functions. Lenders and archives are not somehow two disconnected roles; there is no impropriety in one entity doing both things. The opposite is true: whatever your focus, you cannot do one without the other, and these functions all work together to create what we think of as a “library.”

Then there’s more “not a real library” whining I’ve already talked about. It even tries to imagine a petty conflict between IA and other libraries with the language “siphoning off their patrons”, as if charitable institutions don’t want to coordinate with their peers in order to share the load.

But Reflections makes a further misstep: it tries to assert that the Internet Archive “not being a real library” somehow matters.

The Internet Archive is not relying on any special provisions that only apply to libraries. Controlled Digital Lending uses the ownership right to enable the traditional lending practice of libraries, but there’s nothing that requires one to be a traditional library in order to lend. Libraries do that, but so can a research institution or anyone else.

But Reflections asserts this idea that, if IA is an archive, it becomes improper for it to lend books. This is trivially false, and they make no real argument to the contrary after their simple assertion that it’s somehow wrong behavior. It isn’t.

Usurps market for future ebook versions🔗

Hachette Book Group v. Internet Archive While the quality of the digital format scans that IA provides are inferior to the quality of Publishers’ ebooks, these bootleg versions act as a substitute for the authorized versions, since readers select titles for their content. No one reads a James Patterson thriller after downloading a scan of the book from Open Library and then declares, “I liked it so much, I am going to read an authorized ebook again on my Kindle for a different experience.”

The Authors Guild’s “advocacy” regarding CDL CDL’s threat to author incomes and the ebook market [is because]… unauthorized scanning and e-lending of books that were previously published only in physical formats would usurp the market for creating new ebook versions; … Needless to say, if Internet Archive’s plans to expand Open Library broadly to all libraries are realized, it would eventually … usurp authors’ rights to bring their older works back into the market.

A simple enough argument. If the Internet Archive has already digitized a book, and is already lending it out, why would publishers invest resources in creating an ebook to sell as a paid product? After all, “you can’t compete with free”, so isn’t it a waste to create new ebooks that won’t sell?

But this is easily answered; as previously established, CDL copies do not serve the same functions as first-class ebooks: the quality is lower, the scanned images are missing searching and rich text features, and the lending nature makes them unsuitable for any use requiring book ownership.

This is actually a point the suit against IA makes itself, by way of insult:

Hachette Book Group v. Internet Archive One who makes and distributes reproductions of that physical copy—such as IA’s low quality scans—is well outside the bounds of the law.

Declaration of Ben Sevier, SVP of a Hachette subsidiary Internet Archive also harms Hachette in less obvious ways. Hachette has very high standards for its ebook products and the Internet Archive’s scans, while entirely legible, fall short of these high standards. Authors and consumers have come to expect our works to be distributed in high-quality formats and the availability of these works in a scanned format could reflect poorly on Hachette in their eyes…

This is a foolish insult to make, because it undercuts their claim that CDL copies are ebooks that compete with their other ebook offerings. They aren’t, and publishers being unable to resist getting a dig in here is them admitting it.

So first-class ebooks can definitely compete with CDL copies, because the use cases for both are very different. It’s just a shame the Open Library harms the ebook market. Right?

Here’s a little trick. When you know someone is lying to you, and they make a point of implying something without saying it directly — like “the Open Library harms the ebook market” — check to see if the exact opposite of that is true. Because, wouldn’t you know it, it turns out book digitization projects like the Open Library actually strengthen the ebook market.

Quoting James Somers in an investigation of the similar Google Books project:

James Somers, “Torching the Modern-Day Library of Alexandria” Out-of-print books, almost by definition, were commercial dead weight. If Google, through mass digitization, could make a new market for them, that would be a real victory for authors and publishers. “We realized there was an opportunity to do something extraordinary for readers and academics in this country,” Richard Sarnoff, who was then Chairman of the American Association of Publishers[sic], said at the time. “We realized that we could light up the out-of-print backlist of this industry for two things: discovery and consumption.”

So, even before the Open Library, publishers themselves expected that using a digital library to shine attention on out-of-print and backlist books could be a huge opportunity to create demand for both backlist physical books and new ebooks.

But is that what happened with the Open Library? Also yes. Despite all publishers’ implications to the contrary, not only was no harm was done to them by their books’ presence in the library, but library listing of in-print books actually increased their sales.

The EFF hits the nail on the head in the supporting memorandum:

EFF, Redacted Memorandum of Law In Support of Defendant Internet Archive’s Motion for Summary Judgment In fact, [publishers’] overall profits have grown substantially, and sales of the works at issue in this case appear to have increased.

There is no evidence that CDL has harmed the market for the Works in Suit. In fact, the available data shows that people don’t buy fewer copies of a book when that book is available for borrowing via CDL. Expert analysis of print sales for each of the Works in Suit shows that there was no noticeable dip in unit sales of print formats of the Works in Suit when those works became available for CDL borrowing via the Internet Archive. … In fact, when the Works in Suit were removed from the Internet Archive after this case was filed, their sales worsened slightly.

…Nor does CDL depress revenues for ebooks from the library channel in particular. Over the last five years, while the Internet Archive has been actively lending digitized books to its patrons, demand for ebooks from libraries has only increased.

EFF, Redacted Memorandum of Law In Support of Defendant Internet Archive’s Motion for Summary Judgment Analysis by two separate economists shows that the Internet Archive’s lending practices have no negative effect on the market for the Works in Suit. Statement When editions of the Works in Suit were first made available for borrowing from the Internet Archive via CDL, their corresponding print sales at retail did not decline relative to other books. Indeed, when the Works in Suit were removed from the Internet Archive after this lawsuit was filed, their print sales slightly worsened relative to other books.

So, for the books available in the Open Library (most of which were not available in ebook format at all), not only did the Open Library not harm publishers’ growing ebook sales, they actually measurably increased sales of physical books for publishers. That’s a service publishing companies pay other people to do for them, and here it’s being provided for free as a side effect of library work!

And what’s really absurd is that publishers were keenly aware of this. They knew the anti-library case didn’t make sense, but they bullshitted their way through anyway.

EFF, Redacted Memorandum of Law In Support of Defendant Internet Archive’s Motion for Summary Judgment …Plaintiffs’ own witnesses admitted that their theory of harm is “speculative” and simply an “inference one could make.” And tellingly, Plaintiffs specifically instructed their expert not to try to measure any economic harm.

In a copyright lawsuit against a practice that has continued for years, one would expect the copyright holder to be able to point to some metric showing that the defendant’s conduct has harmed them. Yet Plaintiffs have failed to quantify any market harm from CDL. And there’s a good reason: because the lending, licensing, and sales data demonstrate that no such harm has occurred or is likely to occur.
… Expert analysis of print sales for each of the Works in Suit shows that there was no noticeable dip in unit sales of print formats of the Works in Suit when those works became available for CDL borrowing via the Internet Archive. (Defendant requested in discovery, but Plaintiffs refused to produce, the data needed to do the same analysis with respect to sales to consumers in ebook format.)

Not only was none of this objective evidence refuted in the suit, but the plaintiffs actually refused to provide any evidence of any actual harms, despite most of their arguments depending on them having already been damaged and harm already having been done. What’s more, they actually withheld the data needed to verify the claim one way or the other!

So no, controlled digital lending doesn’t usurp the market. In fact, it actively builds up that market for the benefit of the publishers, a fact the publishers are trying to bury as part of a larger power grab.

CDL books are a market substitute🔗

I’ve talked about this before under “CDL as Alternative”, but now that we’ve been fully introduced to the depravity at play we can dive even deeper.

From that section, you already know that CDL books aren’t a true alternative to either physical or digital books, and the few ways they are able to meet peoples’ needs are good, not bad.

In its Statement on Flawed Theory of “Controlled Digital Lending”, the Association of American Publishers argues

…As proposed, CDL would be equally applicable to current, in-print works for which digital lending licenses are available to libraries.

Because publishers generally make e-book lending licenses available to libraries for both frontlist and backlist works, and CDL is expressly designed to allow libraries to create their own substitute e-book editions for such works, it is clear that CDL copying would create direct market substitutes for publishers’ extensive licensed offerings, not only for digital copies but also for hard copies.

It’s so important that this is so offensive to them. The real reason they’re attacking the practice is they perceive right-to-lend as a threat to their already-dubious “ebook licensing” racket. Remember: it’s not true that libraries license hard copies!

Reflections from the Association of American Publishers on Hachette Book Group v. Internet Archive: An Affirmation of Publishing Internet Archive sought to justify its “Open Library” under a legal theory called “controlled digital lending” (CDL), but the Court firmly rejected that assertion, holding instead that it offers up a competing market substitute for authorized versions of the works in violation of authors’ and publishers’ rights.

This is flatly wrong. We don’t even have to get into whether offering a market substitute should be allowable or not, because we already know CDL books don’t substitute for anything. Old ground.

But it gets so much worse. In the arguments against CDL, the simple existence of an alternative to a mandatory licensing system is presented as objectionable, in and of itself. From The Authors Guild’s “advocacy” regarding CDL:

CDL’s threat to author incomes and the ebook market comes [because] … instead of purchasing library ebook licenses (which are more expensive than consumer editions for good reason), libraries would simply digitize the print book from their collection, depriving authors and publishers of important licensing income. Needless to say, if Internet Archive’s plans to expand Open Library broadly to all libraries are realized, it would eventually decimate the market for library ebooks

So yes, if you listen to these people, using a book you already have instead of having to purchase a license is a threat to the very existence of books themselves, because they deny publishers the revenue from forcing you to buy the same thing twice. They’re such irredeemable monopolists that they object to the books you already purchased from them, on the basis that the book you own “competes” with their ability to sell it to you again!

Ebooks are already available directly🔗

Hachette Book Group v. Internet Archive Since the early 2000s, Plaintiffs and other publishers have offered readers digital versions of their books, which can be read on portable electronic devices such as the Kindle, Nook, iPad, and other smart devices. … Plaintiffs have collectively made thousands of the books in their catalogs available in ebook form, including the Works identified in this suit and hundreds of thousands of other works, backlist titles included. Virtually all of the trade books being offered for sale by Plaintiffs, including backlist books, are available in both print and ebook form.

Again, this attempt to pose ebooks as relevant to CDL simply isn’t true on the facts. Crucially, the “digital versions” publishers distribute aren’t being sold as permanent property. They’re simply not comparable to either scanned books or hard copies because of their ephemerality. With the exception of their hardcover originals, CDL book copies have no comparable item on the market, and certainly can’t be replaced by the ebooks publishers currently offer.

Overdrive is sufficient for libraries🔗

Hachette Book Group v. Internet Archive Plaintiffs have worked with libraries and library aggregators such as OverDrive to pioneer an innovative and highly successful service that enables library patrons to easily and lawfully obtain digital copies of books. Under negotiated terms, publishers provide their ebooks to library aggregators, who, in turn, work with libraries and their patrons to host a platform that permits and tracks the lending of ebooks.

Except libraries hate Overdrive, as I’ve recounted. That’s the only reason why they’re willing to invest in a whole new thing; if Overdrive were serviceable for libraries, no one would be investing time, funding, and man-hours just for the possibility of replacing it!

(Also note the sinister wording in that quote. In publishers’ eyes, it’s them who “permit” the lending of books, and they insist that they reserve the right to simply suspend property rights as they please.)

CDL is a waste of physical books🔗

Hachette Book Group v. Internet Archive Once locked away, upon information and belief, IA will make no effort to make the print books available to be read, like books in actual library collections

I almost folded this point into the “not a real library” whining, but it’s just stupid enough that I have to talk about it. They’re acknowledging that the Internet Archive is honoring copyright by only loaning out a single usable copy at a time for each book they own, and they’re complaining about it. This isn’t a real complaint, this is just padding the document.

But this is an especially weird complaint to make of an archival library because it seems to think that indexing, storing, and preserving physical books isn’t of any value. This is classic spreadsheet-brain disease. The archival, indexing, and preservation work the IA does for the open library is quite clearly of value; if not in use by CDL, those are still real books that can be retrieved and read by people. A CDL-dedicated copy could easily turn out to be the last physical copy of a book, in which case it could be retrieved and even re-copied by the publisher if needed.

Brewster Kahle with containers

Jeff Kaplan, “Why Preserve Books? The New Physical Archive of the Internet Archive” Books are being thrown away, or sometimes packed away, as digitized versions become more available. This is an important time to plan carefully for there is much at stake.

A reason to preserve the physical book that has been digitized is that it is the authentic and original version that can be used as a reference in the future. If there is ever a controversy about the digital version, the original can be examined. A seed bank such as the Svalbard Global Seed Vault is seen as an authoritative and safe version of crops we are growing. Saving physical copies of digitized books might at least be seen in a similar light as an authoritative and safe copy that may be called upon in the future.

Internet Archive is building a physical archive for the long term preservation of one copy of every book, record, and movie we are able to attract or acquire. Because we expect day-to-day access to these materials to occur through digital means, the our physical archive is designed for long-term preservation of materials with only occasional, collection-scale retrieval. Because of this, we can create optimized environments for physical preservation and organizational structures that facilitate appropriate access. A seed bank might be conceptually closest to what we have in mind: storing important objects in safe ways to be used for redundancy, authority, and in case of catastrophe.
…If we are successful, then this set of cultural materials will last for centuries and could be beneficial in ways that we cannot predict.

What the Internet Archive is creating with their physical book archive is a remarkable accomplishment. It’s not unlike a microfilm library, except that unlike microfilm, the unmodified original books are still available for examination without any loss of portability or accessibility for libraries using the resource.

This is why the Internet Archive, at great expense, scans books by hand, without damaging their bindings! Corporations that bind books usually saw off the bindings in the process, but the Internet Archive’s physical book archive is designed from the ground up to be a true archive. It’s something publishers don’t have any incentive to value, and they clearly don’t.

IA doesn’t buy books direct from publishers🔗

Hachette Book Group v. Internet Archive Remarkably, every one of the systems for acquiring books described above is designed so that IA avoids paying authors or publishers anything

Here, publishers are specifically complaining that purchasing used books doesn’t directly pay publishing companies, which I’ve already well established is how it should be.

But this hits on another important point: IA couldn’t buy books directly from publishing companies if they wanted to, because the publishing companies refuse to sell IA the books they need.

EFF, Redacted Memorandum of Law In Support of Defendant Internet Archive’s Motion for Summary Judgment Plaintiffs refuse to sell copies of ebooks to libraries outright. Internet Archive purchases ebooks from other publishers who are willing to sell them outright and would purchase ebooks from Plaintiffs if they were willing to sell them. However, Plaintiffs have declined each time Internet Archive has asked over the years.

If the books were available to purchase at a reasonable price, the Internet Archive would surely use the direct, efficient channels instead of sourcing used books and hand-producing each CDL version with archive labor. The only reason it has to do all that is the hostility of the publishing companies and their refusal to sell loanable ebooks.

A role of publishers is to prevent this sort of thing🔗

Hachette Book Group v. Internet Archive Authors expect their publishers to be guardians, ensuring the high-quality of their works as delivered to the marketplace. Websites like Open Library, thus, hurt Plaintiffs’ relations with authors.

This is just deeply goofy. The publishers are trying to get around the fact that they don’t have the rights to do what they want by claiming that an author might expect them to have those rights. And moreover, that said violation of expectations is not a function of their dishonesty toward writers, but rather a harm inflicted on them by a third party conducting its own business, whose offense here is that publishers didn’t sufficiently hurt them.

That’s like saying if someone asked me to rob a bank, my not being able to do that legally would be a harm the bank was doing to me. I still can’t believe someone got paid money to write that argument.

If I didn’t already have a wealth of evidence for my side already, I’d use the fact that they’re clearly grasping at straws to show they don’t have a legitimate case anywhere underneath all their rhetoric.

The answer should just be whatever makes publishers money🔗

And here it is, argument bedrock. Everything else has just been window dressing for this anyway.

Hachette Book Group v. Internet Archive [Running Open Library] interferes with Plaintiffs’ relationships with customers and distributors, including libraries, who had already paid full value for them. The willingness of those distributors and customers to acquire digital formats in the future is diminished by the free distribution of Plaintiffs’ books, including the Works, on the Website.

Declaration of Ben Sevier, SVP of a Hachette subsidiary Moreover, the increasing availability of free ebooks on Internet Archive is likely to put downward pressure on library ebook prices

Reflections from the Association of American Publishers on Hachette Book Group v. Internet Archive: An Affirmation of Publishing Judge Koeltl also addressed the ongoing nature of the threat, noting that IA could expand its Open Library project far beyond the current scope, and that new organizations might emerge to perform similar functions, which in the Court’s view would plainly risk future displacement of the publishers’ potential revenues.

Internet Archive Opinion & Order IA 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. But these alleged benefits cannot outweigh the market harm to the Publishers.

This is the “quiet part out loud” time, where the publishers stop bullshitting about protecting authors and just honestly advocate their belief that the government must grant them more money and control as a special prize. This argument — the winning argument — is that court should protect publisher revenue, not people’s rights.

Just listen to what they’re saying; Loaning books digitally isn’t wrong because it actually violates copyright, it’s wrong because it “diminishes willingness” to purchase from publishers. Increased ebook availability isn’t wrong because they’re reproductions, it’s wrong because they put “downward pressure on library ebook prices.” Even if the Open Library isn’t doing anything wrong today, they have to be stopped because someday they might expand, not in a way that’s in any way illegal, but in a way that “risks future displacement of the publishers’ potential revenues.

This is the whole problem with modern IP spelled out. What IP companies — like these publishers — are doing is replacing a carefully balanced system of incentives for creating new work to enrich society with a system that forces money from the public into the hands of a few companies, in exchange for creating nothing of value.

As Stephen Prager wrote for Current Affairs,

Stephen Prager, “Book Publishers Are Trying to Destroy Public E-Book Access in Order to Increase Profits” This is stunningly candid. Judge Koeltl is asking us to accept that a website that provides an unequivocal benefit to humanity be shut down so that these corporations can continue to profit handsomely without having to provide us with anything new to justify that profit.

This contradicts everything we are supposed to believe about the virtues of free-market capitalism as a system. The competition between private commercial interests is supposed to spur innovations that lead to human flourishing. But what we have here is a nonprofit organization that is providing a better service than the for-profit ones. Instead of competing in the market by improving their product and reducing their prices, the publishing profiteers fight like cowards, using the legal system to destroy a valuable public service to protect their own profits.

The truly frustrating thing is, ultimately, the truth doesn’t matter. It doesn’t matter that CDL strictly obeys copyright. It doesn’t matter that the Open Library uses legally-acquired books to provide a valuable service to people. It doesn’t matter that CDL’s an efficient use of resources. It doesn’t matter that the publishers are wrong, completely, along every avenue of discussion. It doesn’t matter that every weight on the scale that should matter is on the Internet Archive’s side. Every legal factor in support of CDL is irrelevant in the face of the one true argument: that the established players might make less money.

This is the mentality of financiers so obsessed and fixated on the money itself that they’ve entirely forgotten about creating new value and selling products customers want to buy. All of that is thrown out entirely in favor of the money printing machine that is entrapping people and extorting economic rent.

This is how we get the “copyright ship of Theseus” argument: “If you replace all the parts of the boat individually, the boat that remains, metaphysically, is whichever answer makes us the most money.”

Consider the “risk” that widespread adoption of CDL could put “downward pressure on library ebook prices.” Does that downward pressure represent market equilibrium? Are prices currently inflated by extortionist practices? Would a slight downward adjustment in prices be an expected market result after an artificially inflated bubble? No one is allowed to even consider that question. The line must go up and that is where the thought process ends.

But the “copyright law should encourage whatever makes publishers the most money” argument is even worse than that. Copyright is actually supposed to be weighted, but in the opposite direction.

While I prefer working in the concrete space of rights and obligations, copyright does require consideration of some “fuzzy factors”. Specifically, because it’s a system “to promote the Progress of Science and useful Arts”, the public benefits provided by a practice are an argument for its legality. This was eloquently summed up in Blanch v. Koons: “The ultimate test of fair use … is whether the copyright law’s goal of ‘promoting the Progress of Science and useful Arts’ would be better served by allowing the use than by preventing it.” The Open Library is exactly such a case.

EFF, Redacted Memorandum of Law In Support of Defendant Internet Archive’s Motion for Summary Judgment …digital lending serves the public interest by increasing access to and dissemination of knowledge, without harming the commercial interests of the publisher. That is the ultimate purpose of copyright: to encourage “the intellectual enrichment of the public.”

The purpose and character of the use strongly favors a finding of fair use because the use is wholly noncommercial; is transformative under the Second Circuit’s fair use precedents; and furthers the ends of copyright’s exhaustion doctrine.

For all of these reasons, CDL satisfies the “ultimate test of fair use,” which asks “whether the copyright law’s goal of ‘promoting the Progress of Science and useful Arts’ would be better served by allowing the use than by preventing it.”

The clear public benefit of an accessible library tips the scales even further in the Internet Archive’s favor, because copyright is built to serve the public. There is no provision for scale-tipping consideration in favor of decisions that serve private interests and support the revenue streams of corporations at the expense of a public benefit. The exact opposite is true.

This new right publishing corporations are pursuing, the feudal right, is not only evil prima facie, but it’s fundamentally at odds with the core purpose of copyright, which is the authority under which it’s trying to claim it!


  1. In the same sentence, they also mention that “devices are required to read them”, but that isn’t really anything. 

  2. There’s so much more to this story, but that’s another topic for another day. In fact, that’s such a huge topic that I already cut it from the Netflix essay. Maybe someday! 

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