As I’m writing this post, I haven’t really seen anyone talk about the Hachette vs Internet Archive and I would really like to hear what others think, so here’s my little attempt at writing down my thoughts.
The way I understand it, Hachette vs Internet Archive (which, despite its name is actually Hachette Book Group, HarperCollins Publishers, John Wiley & Sons and Penguin Random House vs the Internet Archive) is a case about Controlled Digital Lending (CDL). What the Internet Archive (IA) and its partners did was to digitise copies of physical books and then lend them out. The catch is that if someone has borrowed the physical book, the digital book cannot be borrowed and vice versa.
I can see some advantages to this – for example, if there are old books that do not yet have an ebook, this program could make it available digitally (even if it’s just a scan) and that theoretically wouldn’t cost the publishers anything, since they don’t have the ebook for sale.
But on the other hand, publishers do sell ebooks separately from physical books! At one point, Amazon had something called Matchbook where you could get the ebook for free/heavily discounted if you purchased the physical book. However, I don’t think that was ever the norm and it seems to be accepted that if you buy a physical book, you don’t get an ebook or audiobook that comes along with it.
On yet another hand (I’m up to 3 hands right now), I can see why libraries would want to lower their acquisition costs for ebooks – the current model is extremely expensive. Jane Friedman, in her post on how much authors earn for library checkouts, has the mid-list price of an ebook as $55 (presumably USD). At Wired, libraries are said to be paying between $20 and $65 per ebook license, and unlike when libraries buy a physical book, library ebook licenses will expire after the term ends and/or have a limit to how many times the book can be checked out. Yet a third post by a librarian on Smart Bitches, Trashy Books estimates that libraries pay 3.5 times more than consumers for an ebook.
This pricing just doesn’t make sense – in 2019, Overdrive revealed that for Macillan, 79% of their books expired because of the time limit, not because it reached the 52-limit checkout. This means that libraries pay more for ebooks AND the ebooks will expire (unlike for us consumers, though we technically don’t own the ebook but only license it). I couldn’t find out which library uses CDL but I can see the appeal in it.
By the way, the current pricing model isn’t the only way to do things. Draft2Digital, which distributes to Overdrive, also provides a Cost Per Checkout structure, where libraries only pay when a user checks out an item. It would allow libraries to take a chance on new/unknown authors, although I suppose it’s not as great for publishers given that books are being checked out at much lower frequencies than the the license allows for.
So right now, we have three roughly competing groups of interest:
- Libraries, which would want to acquire as many books as their users would want to read, in the formats that users want (i.e. they would probably prefer the costs to go down)
- Publishers, who want to make as much money as possible (i.e. the more they can charge anyone, the better)
- Authors, who like publishers would also like to make money, but may also depend on libraries to help people discover them (i.e. they would want libraries to buy their books and promote them).
I’d say that author and publisher interests are similar but not entirely the same. I would argue that the author has a bigger discoverability interest but the publisher would care less about the individual author and more about how they are doing as a whole.
Going back to the court case, I can honestly say that I see all sides. While I don’t think the CDL model was right legally, it does feel fairer for libraries (that they don’t have to pay so much more for ebooks). Even if libraries don’t use a CDL model, I’d want them (as public services) not to be so price gouged – there’s a difference between paying a fair price so that the publisher and authors can make a living, and paying an exorbitant amount so a company gets record profits.
I haven’t been following the case enough to know what the arguments each side are making about this, but, like you, I kind of see both sides. I guess The Internet Archive hasn’t acquired the books in the manner the publishers would want, but then they are lending the copies to people one at a time, which is exactly what a library does, so it’s not like it’s a pirating site. And I have used the Internet Archive once or twice to reference a book I couldn’t seem to get from my library, even with the option of interlibrary loan. I don’t like ebooks enough to use it regularly as means of accessing books and reading novels personally.
Yes, I think the crux of the case is that ebooks and physical books are different products, and so the Internet Archive turning a physical book into an ebook is transformative enough that their argument didn’t hold water with a judge (my understanding, at least. I could be very wrong).
I like ebooks and find them really convenient, so I am all for libraries getting more of them. So I do like this model of “lend out the one copy you buy in any format” to help libraries to acquire more books – but I suppose we need the publishers on board to make that happen
I kept hoping someone would write on this! I had considered it, but I haven’t followed the case closely and I would need to do some more research.
But, with that disclaimer, here are my random, half-baked thoughts. The lending out of a digitized copy while making the physical copy unavailable does seem to have some sort of logic to it. I can see where someone thought it would be a great idea to make books more accessible. But since it is rather a new idea that no one else seems to have tried (or not widely), I’m not surprised the courts are taking it up. Libraries do operate under a lot of laws that dictate what they can and cannot do with books. And often that means with physical books, you can do what you want with them once you buy them (lend them to friends, make art out of them, sell them used). But digital books do have different rules. And are organizations really meant to be digitizing physical books for free consumption?
Because I think this case sort of came to a head during covid when IA loosed restrictions on the files and were letting people check out the same book at the same time, yes? In that case, it does look a lot more like a piracy site where PDFs are just free for the downloading.
I know quite a few librarians and they usually come down, in their personal opinions, to believing everything should be free and accessible. I’ve heard some complain about copyrights and I’ve even seen libraries on the web seemingly break copyright either because they don’t know better or seem to believe they should be exempt because they are nonprofits for a good cause. Or because I think some people just don’t understand “fair use” and think libraries always get it.
But I do think libraries have a responsibility to know copyright law and model good behavior for the public because there needs to be a balance. Yes, publishers are overcharging for ebook licenses and that’s not fair to the public. On the other hand, it’s not fair for libraries to ignore copyright totally when authors and illustrators and creators need to make money to live. People need to feel that being creative is worth it and that their work will not immediately be taken and disseminated free without them earning anything from it– or they will stop creating.
All that is to say is that I don’t know how this particular case will play out, but I do find it interesting. I imagine it will set a precedent for future cases since it seems to be dealing with a new interpretation of fair use and/or library lending rules.
(Oh, also a note: some libraries limit who can get cards based on tax rules, I believe. For instance, if I am not local to an area and don’t pay taxes towards the library, I have to pay for a library card at what I imagine is something like the amount taxpayers pay each year. I do wonder how a model like this where anyone can check out a library’s book works in regards to such tax rules. My vague understanding from one librarian was that, in her system at least, if they violated rules about cardholders set by the state, they could potentially lose state funding. But she didn’t elaborate.)
I welcome all thoughts, since I also wrote from the perspective of a layman who may not have fully understood the case.
One thing I tried (but failed) to do was find a list of libraries using IA’s model – there’s supposed to be one, but from my experience, Overdrive seems to be more dominant. If IA loosened lending limits during the pandemic, like you said, then I can see how they would be seen more as a pirate site than a library.
There’s also the idea that every library loan is a lost sale, but I don’t buy that because there are people who are reading books they borrowed which they would probably never buy.
The more I think about it, the more I feel like this situation is caused by publishers who are charging far too much to libraries due to a worry that libraries are reducing their profits. I’m not a librarian, but I would hope that libraries would want to get all their ebooks legally as long as it was available at a fair price (the way Apple made paying for music the way to go, instead of streaming it). I’m not saying the IA is completely in the right, because as much as the CDL website tries to argue, it’s clearly flawed since the argument wasn’t strong enough and they lost the case. I think both publishers and libraries should work together to find a win-win solution.
I can’t press the reply button for some reason so I will try making a new comment!
I think why I find this case so interesting (and I want to eventually read up on it more) is because I have no idea if IA is in the right! Or if they are in the right at some points but not in others. And what does “in the right” mean in this case because, of course, they could be found in violation of the law, yet not everyone would agree that this would be a “right” decision. Even if the publishers win, I think many would still want publishers to offer more equitable pricing for libraries and to make books more accessible in general. Again, there needs to be that balance where publishers can still make money so they can produce more books–but not at the total expense of the public/consumers/libraries.
And, yeah, I do think publishers could offer fairer ebook prices to libraries. As you noted, the data shows that ebook licenses typically expire before the 52 checkout limit. And this seems somewhat absurd when you consider that a library could buy a physical book for much less and keep it indefinitely (until it falls apart). It just seems like laws haven’t kept pace with new technology. Why can libraries do whatever they want with physical books, but must be subjected to wild pricing schemes to license ebooks?
And, yes! I agree not every book is a lost sale. Libraries maybe inadvertently encourage the idea that they causing lost sales, though, since they do pitch how much money they save people. Receipts with, “You saved X amount of money this year by using the library” seem trendy. But the reality is, no, not really. I probably read 100-150 books a year (caveat for the skeptical: many are picture books and comics). There is NO WAY I would buy 100 books a year. I can’t afford it. With libraries, I would just read fewer books.
I do often get the sense that publishers don’t actually like libraries and feel like libraries are just costing them money, but I think publishers should instead consider libraries a specific marketing segment. What can they offer to libraries that the general public wouldn’t buy for themselves? How can they create relationships that are beneficial to both parties?
And an interesting note: I believe Maryland, New York, and Rhode Island were trying to introduce bills that would require publishers to offer libraries ebooks that were offered for the public to purchase elsewhere (so, for example, Macmillan can’t decline to sell libraries ebooks, like they proposed in 2019 with their ebook embargo) and the ebooks were supposed to be reasonably priced. I didn’t follow the case intensely, but the Maryland bill was ruled unconstitutional. I think other bills are being proposed/revised bills are being proposed?
Oh so weird! I’ll have to look into the reply thing – I’m replying via wordpress so it seems okay so far?
I suppose the number of checkouts thing is because theorectically, actual books will wear out too (though I’m guessing not after 52 reads). But it seems ridiculous to have both a time limit and a checkout limit – if it’s 52 checkouts, why can’t that be indefinite? if it’s a two year license, why not allow indefinite checkouts?
I think libraries can be great for helping midlist authors market – I think bookstores are more focused on the new and upcoming books, whereas libraries tend to have more older books (in my experience, anyway). So I could see one avenue of cooperation for publishers there.
I didn’t know about the Maryland, New York, and Rhode Island bills! I expect that the US will be facing more of these, but I wonder how it will play out worldwide too.
I guess if we wanted to be totally equitable, someone could run a large-scale research into the average number of checkouts a physical book gets before being weeded. And base the ebook licensing off that. The sense I get now is that it’s sort of arbitrary and publishers, obviously, are just trying to figure out how to make more money. I am sympathetic to publishers wanting to make money. I know they are businesses and that’s how they stay afloat. But there has to be a middle ground where they make money, but not at the expense of the social good.
And, yes! I think libraries are really great for midlist authors! Barnes and Noble always prioritized bestselling books (even before the recent controversy about their new selling tactics). If I want a kid’s book that isn’t Dog Man, Wimpy Kid, or Percy Jackson, I would have to buy online or go to the library. Libraries not only buy books but also create marketing exposure for midlist books that is likely very undervalued because it’s not often quantifiable. Or quantified. Libraries don’t go around providing data on how much free marketing they do, usually.
I would love for someone to look into this! Actually, I suspect that with the loans of physical books being tracked online (I can use my handphone to borrow physical books from the library and get email notifications) that the data is already there. If someone crunches the numbers and shares it, we would be able to know what a “fair” (if fair = same as physical book) licensing term and maximum number of borrows would be.
Yeah, I’m sure libraries have the data on how many times each book has been checked out. It would just be a matter of how hard it is to collect/dedicating staff time and resources towards collecting it. It might be worthwhile in the long-term, though, if they could use it to negotiate lower ebook prices.