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Publishers looking to delete library of digital books in licence spat

Case triggered by lending of scanned and digitised books during Covid lockdown likely to end up in US supreme court

Libraries – who can trust them? They’re a long-festering plot to do multinational publishing conglomerates out of profits they’d otherwise pocket if people were required to buy every book they wish to read, rather than borrow it – for free! – from these despicable institutions.

And children should never be allowed in libraries, buildings that enable future lawless-reading cretins via the gateway-reading drug of borrowed library books. Yes, of course, people don’t keep the books they borrow and once they are returned someone else can borrow them, but really, who benefits – in the meaningful, financial sense, I mean – from such a repugnant model?

I’ll grant that Charles Dickens did think the concept of the first public lending library was so magnificent that he travelled to Manchester to help launch it 170 years ago and made an inaugural speech marvelling at the creation of a facility “knowing no sect, no party and no distinction; nothing but the public want and the public good”.

But that was typical Dickens. Banging on about reading and access to books on loan, as a “public good” rather than what we all know should really have mattered most: publisher’s profits!


I imagine that, were he alive today, Dickens would be blathering on, criticising big publishers for bringing a case that’s being heard this week in the United States. It challenges whether the silly and ill-conceived concept of lending libraries and – pah! – “public good”, belongs in the digital age.

On Monday, a New York court heard arguments in a case brought by the Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House against the non-profit Internet Archive, in June 2020. Founded by internet pioneer Brewster Kahle, the internationally valued Internet Archive scans and digitises books, including many that are out of print and could otherwise be lost forever and loans them out as physical libraries lend books – to one borrower at a time, for a brief period. Such a system is known as Controlled Digital Lending, or CDL.

The Internet Archive includes Kahle’s well-known and much-loved Wayback Machine, a priceless resource that has captured nearly 600 billion internet pages over time, which you can access whenever you wish.

The case centres on the archive’s making ebooks available via its National Emergency Library, to multiple users at a time – including children’s schoolbooks – during the spring 2020 Covid lockdown, when schools, libraries and bookshops shut down. The publishers sued on behalf of 127 books but demand that much of the Internet Archive’s library of scanned books be destroyed because the archive hasn’t obtained digital licences for the books.

Publishers “sued really not so much based on the National Emergency Library – it’s just a lending library, after all. They sued about 127 books. What their demand is, is because of these 127 books, they want us to destroy 1.3 million digital books ... it’s outrageous,” Kahle told me last year in an interview for the Walled Culture podcast, a project focused on exploring how copyright laws are failing to accommodate a digital world.

To be clear: brick-and-mortar libraries can and do make scans of physical books they own, to lend under CDL. But they cannot buy and loan out digital versions of books. They are required to obtain a licence for digital books (that’s effectively all you get when you buy a Kindle book, too – you don’t “own” the book in any way analogous to buying a print version).

Much larger issues are at stake than the Internet Archive’s own library in a case likely to end up in the US supreme court, so important are the implications and consequences for individuals and society. Factors in play are who owns a purchased digital book, what “ownership” means (probably not what you had thought), what other data about readers and borrowers publishers can surveil and acquire by the sale or loan of a digital book (potentially, quite a lot) and whether there’s a public good that should – must – be served by loaning digital books in a profoundly digital age, without publishers continuing to monetise a book through licensing terms or data harvesting.

You can read a summary of the weighty issues involved here and in chapter two of writer Glyn Moody’s free ebook created from the Walled Culture podcast and blog posts.

A disclosure: overall, the Walled Culture project, which began in 2021 and, as one small element, discusses the archive case because it is, in breadth and impact, so vitally important was generously supported by Kahle’s private foundation.

But the (hands-off) support of Kahle – a legendary, modern proponent of the digital public good whom, I’ve no doubt, Dickens would honour and admire – is key to why I jumped at the chance to be involved with Walled Culture. Mainstream corporate conglomerates across film, music, publishing and art which benefit from outdated copyright laws and push for “fair use” restrictions are not going to be the ones supporting digital public access, for “the public want and the public good”.