Why can libraries lend print books, vinyl, cassettes, CDs, and DVDs in the US? Because of a legal doctrine called "the first sale right," which goes like this: if you have a legally-produced physical object containing copyrighted material, you can do whatever the fuck you want with that physical object with zero copyright implications --other than reproduce/copy or perform it (which does have copyright implications, complex ones).

You can (yes) burn it. You can lend it to a friend, or an enemy, or a random stranger. You can give it away. You can throw it away. You can resell it. You can hang it on your wall or in your window. You can make an art installation with it. And the copyright owner cannot win a copyright-based lawsuit over any of this, even if they hate what you're doing! Even if it competes with them selling new copies (as the resale market absolutely does, and as some jerkfaced copyright owners -- usually corporations, not authors! -- love to complain that libraries do)!

Here's the thing, though, and it's an important thing so I'm gonna big-type it:

The right of first sale does not apply to anything digital ever.

Not ebooks (digitized or born-digital, doesn't matter). Not streaming anything. Not paywalled online news or research.

When libraries offer these to patrons, it's through contracts with publishers or aggregators. Long story short, a lot of these contracts are ridiculously restrictive (not to mention expensive) to the point of cartoonish evil, but it's what we have to work with.

The idea behind Controlled Digital Lending is "if libraries purchased a physical item legally, we should get to lend the item to one person at a time as we always have, and it shouldn't actually matter whether what we lend is the physical item or a digital version of it, as long as only one or the other is out to a patron at a given time."

Which is an untested legal theory! I can't tell you whether it's legal! Nobody can! The case law doesn't exist! Yeah yeah, there's relevant past cases in both directions having to do with accessibility or Google Books or whatever, but a specific precedential ruling on CDL is not a thing that presently exists.

No, not even now. Because what IA did with its Open Library during lockdown, and got slapped down for by the court, is not CDL as defined above. IA didn't hold to one-person-at-a-time-per-book. They tried to make a fair-use argument for what they actually did (that is, not for actual CDL), and the court was not having it.

The thing is, IA's stumblebummed legal fuckup means that actual CDL, as actual libraries (n.b. the IA is not an actual library or an actual archives, I will happily die on this hill, I loathe IA like poison and do not want to admit them to my profession, IA people have dissed me and my work TO MY ACTUAL PHYSICAL FACE and they only love libraries or librarians when trying to hide behind us) were trying to design and implement it, now faces additional legal hurdles. Any court looking at an actual CDL program has to take into account IA getting slapped down. And that's if we can even find a library or library consortium with deep enough pockets and hardcore enough legal representation to even defend such a case.

The thing also is, IA just issued Big Publishing a gilt-edged invitation to use this precedent to sue actual libraries, especially academic libraries, over other things we do. (I'm gonna pass over exactly what in silence because I do not want to give those fuckers ideas, but... there have been past lawsuits, look 'em up.) THANKS, BREWSTER. THANKS EVER SO. Asshole.

For a calmer take than mine, check out Library Futures, which to their credit has not given up all hope for CDL.

First-Sale Doctrine & the Economics of E-Books

Libraries are digitizing. This is undisputed. As of 2019, 98% of public libraries provided Wi-Fi, 90% provided basic digital literacy programs, and most importantly for this conversation, 94% provided access to e-books and other digital materials. The problem is that for decades, the American public library system has operated on a bit of common law exhaustion applied to copyright known as first-sale doctrine, which states:

"An individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner."

With digital media, however, because there isn't a physical sale happening, first sale doctrine doesn't apply. This wasn't a huge problem back in the early 2010s when most libraries were starting to go digital because the price of a perpetual e-book license was only $14 -- about the price of single physical book. Starting in 2018, however, publishers started limiting how long a single e-book license would last. From Pew Charitable Trusts:

"Today, it is common for e-book licenses from major publishers to expire after two years or 26 borrows, and to cost between $60 and $80 per license, according to Michele Kimpton, the global senior director of the nonprofit library group LYRASIS... While consumers paid $12.99 for a digital version, the same book cost libraries roughly $52 for two years, and almost $520 for 20 years."

Publishers argue that because it's so easy to borrow a digital copy of a book from the library, offering libraries e-book licenses at the same price as individual consumers undermines an author's right to license and profit from the exclusive rights to their works. And they're not entirely wrong about e-book lending affecting e-book sales -- since 2014, e-book sales have decreased while digital library lending has only gone up. The problem, they say, is that e-book lending is simply too easy. Whereas before, e-book sales were competing with the less-convenient option of going to the library and checking out a physical copy, there is essentially no difference for the reader between buying or lending an e-book outside of its cost.

Which brings us to the librarians, authors and lawmakers of today, trying to find any solution they can to make digital media accessible, affordable and still profitable enough to make a livable income for the writers who create the books we read.

Further Reading:

1854. Copyright Infringement -- First Sale Doctrine

The surprising economics of digital lending

Librarians and Lawmakers Push for Greater Access to E-Books

Publishing and Library E-Lending: An Analysis of the Decade Before Covid-19

Controlled Digital Lending (CDL)

Controlled digital lending is a legal theory at the heart of the Internet Archive lawsuit that has been proposed as one solution to the economic issue with digital media lending. This quick fix is especially appealing to nonprofits like the IA that are not government, tax-funded programs. Where many other solutions, like a legally enforced max price on e-book licensure for public libraries, would not apply to the IA, CDL would essentially be manipulating copyright law itself as a way to avoid e-book licensure altogether and would apply to the IA as well as public libraries.

Essentially, proponents of CDL argue that through a combination of first-sale and fair use doctrine, it can be legal for libraries to digitize the physical copies of books they have legally paid for and loan those digital copies to one person at a time as if they were loaning the original physical copy.

It is worth noting that the first-sale doctrine protecting physical media lending at public libraries does not cover reproductions:

“The right to distribute ends, however, once the owner has sold that particular copy. See 17 U.S.C. § 109(a) & (c). Since the first sale doctrine never protects a defendant who makes unauthorized reproductions of a copyrighted work, the first sale doctrine cannot be a successful defense in cases that allege infringing reproduction.”

This is where fair use comes in, which allows some flexibility in copyright law for nonprofit educational and noncommercial uses. Because the IA and other online collections are nonprofit organizations, proponents of CDL argue that they are covered by fair use so long as their use of CDL follows very specific rules, such as:

A library must own a legal copy of the physical book, by purchase or gift.

The library must maintain an “owned to loaned” ratio, simultaneously lending no more copies than it legally owns.

The library must use technical measures to ensure that the digital file cannot be copied or redistributed.

While this model first earned its name in 2018, it has been practiced by a number of digital collections like The Internet Archive’s Open Library since as early as 2010. It is important to know that controlled digital lending has never been proven officially legal in court. It is a theoretical legal practice that has passed by mostly unchallenged until the Internet Archive lawsuit. This is partially due to the fact that before releasing their official CDL statement in 2018, the IA had been honoring Digital Millennium Copyright Act (DMCA) takedown requests of books in CDL circulation, which authors claim they are not always responding to or honoring anymore. The legality of CDL essentially depends on a judge's interpretation of current copyright law and whether they see the practice as an infringement, which would set a precedent for similar cases moving forward.

There are, however, U.S. court decisions that have rejected similar cases, like Capitol Records v. ReDigi, which argues that digital files (in this case, music files) cannot be resold without copyright holder’s permission on the grounds that digital files do not deteriorate in the same way that physical media does, implying that first sale doctrine doesn’t apply to digital media.

In 2019, the Authors Guild, a group of American authors who advocate for the rights of writers to earn a living wage and practice free speech, pointed out this court case in an article condemning CDL practices. They also argued that not only does CDL undermine e-book licensure (and therefore author profits off e-book sales), but it also would effectively shut down the e-book market for older books (the market for copyrighted books that were published before e-books became popular and are only being digitized and sold now). The National Writers Union has also released an “Appeal from the victims of Controlled Digital Lending (CDL),” that cites many of the same complaints.

Further Reading:

U.S. Copyright Office Fair Use Index

Position Statement on Controlled Digital Lending by Libraries

FAQ on Controlled Digital Lending [Released by NYU Law’s Engelberg Center on Innovation Law & Policy]

Controlled Digital Lending Is Neither Controlled nor Legal

Appeal from the victims of Controlled Digital Lending (CDL)

FAQ on Controlled Digital Lending [Released by the National Writers Union]

 The "National Emergency Library" & Hachette v. Internet Archive

While the Internet Archive is known as the creator and host of the Wayback Machine and many other internet and digital media preservation projects, the IA collection in question in Hachette v. Internet Archive is their Open Library. The Open Library has been digitizing books since as early as 2005, and in early 2011, began to include and distribute copyrighted books through Controlled Digital Lending (CDL). In total, the IA includes 3.6 million copyrighted books and continues to scan over 4,000 books a day.

During the early days of the pandemic, from March 24, 2020, to June 16, 2020, specifically, the Internet Archive offered their National Emergency Library, which did away with the waitlist limitations on their pre-existing Open Library. Instead of following the strict rules laid out in the Position Statement on Controlled Digital Lending, which mandates an equal “owned to loaned” ratio, the IA allowed multiple readers to access the same digitized book at once. This, they said, was a direct emergency response to the worldwide pandemic that cut off people’s access to physical libraries.

In response, on June 1, 2020, Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House filed a lawsuit against the IA over copyright infringement. Out of their collective 33,000 copyrighted titles available on Open Library, the publishers’ lawsuit focused on 127 books specifically (known in the legal documentation as the “Works in Suit”). After two years of argument, on March 24, 2023, Judge John George Koeltl ruled in favor of the publishers.

The IA’s fair use defense was found to be insufficient as the scanning and distribution of books was not found to be transformative in any way, as opposed to other copyright lawsuits that ruled in favor of digitizing books for “utility-expanding” purposes, such as Authors Guild, Inc. v. HathiTrust. Furthermore, it was found that even prior to the National Emergency Library, the Open Library frequently failed to maintain the “owned to loaned” ratio by not sufficiently monitoring the circulation of books it borrows from partner libraries. Finally, despite being a nonprofit organization overall, the IA was found to profit off of the distribution of the copyrighted books, specifically through a Better World Books link that shares part of every sale made through that specific link with the IA.

It worth noting that this ruling specifies that “even full enforcement of a one-to-one owned-to-loaned ratio, however, would not excuse IA’s reproduction of the Works in Suit.” This may set precedent for future copyright cases that attempt to claim copyright exemption through the practice of controlled digital lending. It is unclear whether this ruling is limited to the National Emergency Library specifically, or if it will affect the Open Library and other collections that practice CDL moving forward.

Edit: I recommend seeing what @carriesthewind has to say about the most recent updates in the Internet Archive cases for a lawyers perspective of how these cases will effective the future of digital lending law in the U.S.

Further Reading:

Full History of Hachette Book Group, Inc. v. Internet Archive [Released by the Free Law Project]

Hachette v. Internet Archive ruling

Internet Archive Loses Lawsuit Over E-Book Copyright Infringement

The Fight Continues [Released by The Internet Archive]

Authors Guild Celebrates Resounding Win in Internet Archive Infringement Lawsuit [Released by The Authors Guild]

Relevant Court Cases:

Authors Guild, Inc. v. Google, Inc.

Authors Guild, Inc. v. HathiTrust

Capitol Records v. ReDigi

 Authors, Publishers & You

This is where I’m going to be a little more subjective, because each person’s interpretation of events as I have seen has depended largely on their characterization and experience with the parties involved. Regardless of my own ideology regarding accessibility of information, the court ruling seems to be completely in line with current copyright law and precedent. Ironically, it seems that if the Internet Archive had not abandoned the strict rules regarding controlled digital lending for the National Emergency Library, and if they had been more diligent with upholding those rules with partner library loans prior to the NEL, they may have had a better case for controlled digital lending in the future. As is, I agree with other commentators that say any appeal the IA makes after this point is more likely to damage future digital lending practices than it is to save the IA’s current collection of copyrighted works in the Open Library. Most importantly, it seems disingenuous, and even dangerously inaccurate, to say that this ruling hurts authors, as the IA claimed in their response.

The IA argues that because of the current digital lending and sales landscape, the only way authors can make their books accessible digitally is through unfair licensing models, and that online collections like the IA’s Open Library offer authors freedom to have their books read. But this argument doesn’t acknowledge that many authors haven’t consented to having their works shared in this way, and some have even asked directly for their work to be removed, without that request being honored.

The problem is that both sides of this argument about the IA lawsuit claim to speak for authors as a group when the truth isn’t that simple.

Authors: Ideology v. Practicality

Those approaching the case from an ideological point of view, including many of the authors who signed Fight for the Future’s Open Letter Defending Libraries’ Rights in a Digital Age, tend to either have a history of sharing their works freely prior to the lawsuit (ex: Hanif Abdurraqib, who had published a free audio version of his book Go Ahead in The Rain on Spotify before Spotify began charging for audiobooks separately from their music subscriptions) or have alternative incomes related to their writing that don’t stem directly from book sales (ex: Neil Gaiman, who famously works with multiple mediums and adaptations of his writing).

In these cases, the IA lawsuit is framed as an ideological battle over the IA’s intention when releasing the National Emergency Library.

Many other authors, including a large number of smaller names and writers early in their careers, take a much more practical approach to the lawsuit, focused on defending their ability to monetarily profit off their works. This is by no means a reflection of their own ideology surrounding who has the right to information and whether libraries are worth protecting. Instead, it is a response to the fact that these authors love writing, and they simply would not be able to afford to continue writing in a world where they do not have the power to stop digital collections from distributing their copyrighted work without their consent. These include the authors, illustrators and book makes working with the Author’s Guild to submit their amicus brief in  Hachette v. Internet Archive.

These authors claim that controlled digital lending practices cause significant harm to their incomes in the following ways:

CDL undermines e-book licensing and sales markets, as most consumers would choose a free e-book over paying for their own copy.

CDL devalues copyright, meaning authors have less bargaining power in future contract negotiations.

CDL undermines authors ability to republish, whether as a reprint or e-book, out of print books once their publisher has ceased production. This includes self-publishing after the rights to their work have been returned to them.

CDL removes the income from public lending rights (PLR) that authors receive from libraries outside of the U.S. which operate on different lending and copyright standards.

The amicus brief provides first-person anecdotes from authors, including Bruce Coville of The Unicorn Chronicles, about how the rights to backlisted books, or books without an immediately obvious market, make up a huge portion of their annual salary. Jacqueline Diamond cites reissues of out-of-print novels as what kept her afloat during her breast cancer treatment.

It is worth noting that according to the Author’s Guild, some authors who originally signed Fight for the Future’s open letter defending the Internet Archive have even retracted their support after learning more about the specific lawsuit, including Daniel Handler, who writes under the pseudonym Lemony Snicket. The confusion stems from the use of the term “library” by both the Internet Archive and Fight for the Future. While authors overwhelmingly support public libraries, online collections like the Internet Archive don’t always fit the same role or abide by the same regulations as tax-funded public libraries. Sandra Cisneros, author of The House on Mango Street, has written the following:

“To this day, I am angry that Internet Archive tells the world that it is a library and that, by bootlegging my books, it is simply doing what libraries have always done. Real libraries do not do what Internet Archive does. The libraries that raised me paid for their books, they never stole them.”

Further Reading:

Amicus Brief [Submitted by the Author’s Guild]

Fight for the Future’s Open Letter Defending Libraries’ Rights in a Digital Age

Joint Statement in Response to Fight for the Future’s Letter Falsely Claiming that the Lawsuit Against Internet Archive’s Open Library Harms Public Libraries [Published by the Author’s Guild]

Copyright: American Publishers File for Summary Judgment Against the Internet Archive

 Publishers: What Authors Are Paid

Some of the commentators I’ve seen are disgruntled specifically with the publishers suing the Internet Archive, and I will say that many of these complaints are valid. The four publishing companies behind the lawsuits (Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House) are not known for the stellar treatment of their authors and employees. With the HarperCollins Publishers strike ending only a month before the IA lawsuit ruling, many readers are poised to support any entity at odds with one or more of the “Big Five” publishers. In this particular case, however, the power wielded by these publishing companies was used in defense of author’s rights to their works, for which The Authors Guild and other similar creator groups have expressed gratitude.

When it comes to finding solutions to the digital lending problem in general, it is important to understand what and how authors are paid for digital copies of their work. Jane Friedman has created the graphic below displaying the industry standards for the Big Five publishers. You can read more about agency and wholesome models here.

As you can see, authors and publishers alike benefit from e-book library licensure when compared to individual e-book sales, especially when you consider the time limits on library licensures. But advocates of this licensure model argue that the high prices for e-book licensure are designed to make up for the lost sales in e-books. While library goers buy more books than book buyers who don’t visit the library, the copies they buy typically vary by format. For example, a reader may borrow an audiobook from the library, decide they like it, and purchase a physical copy for their collection. While readers may buy a physical copy of a book after reading a physical library copy, they are unlikely to buy a digital copy after readying a digital library copy, making e-book lending a replacement for e-book buying in ways that physical lending doesn’t fully replace physical book purchases.

What ISN’T accounted for in this graphic is self-publication and what is known as a right of reversion. Depending on the wording of their contract, an author can request their publication rights be returned to them if the work in question is out of print and no longer being published. The publisher can then either return the work to “in print” status or return the rights to the author, who can then self-publish the work. In these cases, the 5-15% profit they would have made off their traditionally published book becomes a 35-70% profit as a self-published book. This is why authors are particularly frustrated with the IA’s argument that it is perfectly legal and ethical to release digital copies of books that are no longer in print. Those out-of-print works are where many authors earn their most reliable, long-term income, and they provide the largest opportunity for the authors to take control of their own works again and make fairer wages through self-publication.

The most obvious answer to this is that if authors are being the ones hit hardest by library and digital lending, then it is the publishers that need to treat their authors with better contracts. The fact that some authors are only earning 5% of profits on hardcover copies of their books (whether those are being sold to libraries or individuals) is eye opening. Alas, like the “we shouldn’t have to tip waiters” argument, this is much easier said than done.

Further Reading:

What Is the Agency Model for E-books? Your Burning Questions Answered

What Do Authors Earn from Digital Lending at Libraries?

You: The Ethics of Piracy

There are number of contributing factors to Tumblr’s enthusiasm for pirating. We are heavily invested in the media we consume, and it is easy to interpret (sometimes accurately) copyright as a weapon used by publishers and distant descendants of long-dead authors to restrict creativity and representation in adaptations of beloved texts. There are also legitimate barriers that keep us from legally obtaining media, whether that is the physical or digital inaccessibility of our local libraries and library websites, financial concerns, or censorship on an institutional or familial level. In fact, studies have found that 41% of book pirates also buy books, implying that a lot of illegal piracy is an attempt at format shifting (ripping CDs onto your computer to access them as MP3 files, for example, or downloading a digital copy of a book you already own in order to use the search feature).

The interesting thing is that copyright law in the U.S. has a specific loophole to allow for legal format shifting for accessibility purposes. This is due to the Chafee Amendment (17 U.S.C. § 121), passed in 1996, which focused on making published print material more available to people with disabilities that interfere with their ability to read print books, such as blindness, severe dyslexia and any physical disability that makes holding and manipulating a print book prohibitively difficult. In practice, this means nonprofits and government agencies in the U.S. are allowed to create and distribute braille, audio and digital versions of copyrighted books to eligible people without waiting for permission from the copyright holder. While this originally only applied to “nondramatic literary works,” updates to the regulations have been made as recently as 2021 to include printed work of any genre and to expand the ways “print-disabled” readers can be certified. Programs like Bookshare, Learning Ally, and the National Library Service for the Blind and Print-Disabled no longer require certification from a medical doctor to create an account. The Internet Archive also uses the Chafee Amendment to break their Controlled Digital Lending regulations for users with print disabilities. While applications of the Chafee Amendment are still heavily regulated, it is worth noting that even U.S. copyright law acknowledges the ways copyright contributes to making information inaccessible to a large amount of people.

Accessibility is not the only argument when discussing the morality of pirating. For some people, appreciation for piracy and shadow libraries comes from a background in archival work and an awareness how much of our historical archives today wouldn’t exist without pirated copies of media being made decades or even a century ago. But we have to be more careful about the way we talk about piracy. Though piracy is often talked about as a victimless crime, this is not always the case, and each one of us has a responsibility to critically think about our place in the media market and determine our own standards for when piracy is ethical. In some cases, such as the recent conversation surrounding the Harry Potter game, some people may even decide that pirating is a more ethical alternative to purchasing. Here are a few questions to consider when deciding whether or not to pirate a piece of media:

What other alternatives have you seen for legally purchasing, renting or borrowing a copy of this media?

Is the alternative to pirating this media purchasing it or not reading/referencing it at all?

Who does this particular piracy affect? Whether or not you think the creator(s) deserve to have their work pirated, you need to acknowledge there is someone who would otherwise be paid for their work.

If a significant portion of consumers pirated this work, what would the consequences be for future projects? Would you be willing to claim partial responsibility for that outcome?

I’m not making any moral statements about pirating as a whole, just noting that the way we discuss the consequences of pirating has a genuine effect on the media landscape. If you got this far,  thank you so much for reading! It is genuine work to try and understand the complexity behind every day decisions, especially when the topic at hand is as complicated as the modern digital lending crisis.

Further Reading:

Panorama Project Releases Immersive Media & Books 2020 Research Report by Noorda and Berens

The Chafee Amendment: Improving Access To Information

National Center on Accessible Educational Materials

National Library Service for the Blind and Print Disabled

Books For People With Print Disabilites: The Internet Archive

Bookshare