But corporate mega-publishers want purchasing a book to be like renting a movie or streaming an album. //

Buying a book should be no different from buying an apple. When you buy an apple, the farmer can’t show up in your kitchen later and decide your time is up, and you’ve got to pay for it again. It’s yours forever—to eat, or paint in a still life, or cut up for a kid’s snack. And thanks to the first sale doctrine of copyright law, codified by Congress in 1909, the books on your shelves are yours forever, too, in exactly the same way your apple is; you’re free to read them (or not), loan them to friends, or sell them to a used bookshop, without restriction. Copyright law balances the public good—our collective right to access information—with the rights it grants to authors and inventors.

Publishers can’t demand more money for the paper books you’ve already bought, but the technology for copying and distributing books has evolved a lot since 1909. So four titanic corporate publishers are currently in court, insisting on the effective right to barge in and demand multiple, recurring payments for digital books–like they do for digital movies, music, and software–and they want to exercise that same power over the books in libraries.

This threat to the ownership of books is what makes the ongoing publishers’ lawsuit against the Internet Archive politically dangerous, and in an altogether different way from earlier challenges and amendments to copyright law. At a time of increasing book bannings and attacks on libraries, public schools and universities, it is not safe for democracy, or for our cultural posterity, to leave an “on/off” switch for library books in the hands of corporate publishers. //

As I’ve argued before, the lawsuit hinges on the question of whether ebooks are books, subject to the existing laws governing the sale of books, or whether the publishers can redefine ebooks as temporary, rental-only media–a new class of unownable goods, like streaming-only films from Disney or subscription-only software from Microsoft. But libraries must have the option to buy and own their books–all their books, including ebooks–and own them absolutely, like an apple. //

In the summer of 2020, Hachette, Penguin Random House, HarperCollins, and Wiley accused the Internet Archive of “mass-scale copyright infringement” because of the way the Internet Archive’s Open Library loans its ebooks to patrons. Instead of renting their ebooks from publishers, the Internet Archive scans them from the paper books it owns, stores the paper originals, and loans each scan out to only one patron at a time, a common library practice known as Controlled Digital Lending (CDL). Following the reasoning of expert copyright lawyers and library scholars over the last twelve years, the Internet Archive, along with hundreds of other libraries and archival institutions, maintains that CDL is a fair and logical way to preserve traditional library practices for the digital world. //

The publishers’ objective had been to forbid the Open Library to loan any of their in-copyright books as ebooks. That was the explicit request in the original complaint. But not even this industry-friendly judge was willing to go that far; he sided with the Internet Archive’s interpretation of the decision instead. For now, the Open Library will have to stop loaning only those ebooks for which the publishers are offering their own “competing” ebooks for license. In other words, the order relies solely on the argument that the Open Library is harming the publishers’ revenues from ebooks, a distinction that seems to go to the heart of the dispute. //

The publishers shouldn’t be able to pick and choose the bits of copyright law they want to abide by; as we’ve noted, copyright law balances the public good with commercial rights. If publishers’ ebook revenues are protected by the extant provisions of copyright law protecting rights holders, then, presumably, readers and libraries should also be protected. The Internet Archive, and all libraries, should have the same protections under the first sale doctrine that have always allowed them to preserve and lend books to readers.