On The Nation, Maria Bustillos has a lengthy essay looking at the publisher lawsuit over the Internet Archive’s Open Library, and why she thinks it’s a bad idea and harmful not only to the purpose of libraries, but also to the idea of media ownership itself for everyone. It’s an interesting read, but while I can agree in principle that libraries should have more rights in digital lending than they do, I still don’t think the courts are going to see it that way. I’m not any kind of legal scholar myself, but the pattern of court decisions I’ve seen through the years just doesn’t make it look promising.

Bustillos starts out by recounting all the good and useful things the Internet Archive has done in general, and I certainly can’t argue with that list. I use the Wayback Machine fairly often myself, particularly when it comes to linking old TeleRead stories that somehow got lost in one of the blog’s multiple server moves. But then she moves on to discussing the idea of Controlled Digital Lending.

Controlled Digital Lending, Bustillos argues, should already be within libraries’ rights. It’s simply a digital way to accomplish the same thing libraries already do with print books: buy one copy, lend one copy out. She links to Harvard copyright scholar and lawyer Kyle Courtney explaining that the copyright exceptions already granted to libraries should cover this kind of lending, too.

Then Bustillos closes in on what she sees as the real issue: ebook licensing. Since ebooks aren’t sold but only licensed, publishers are able to bypass many of the first sale rights that consumers and libraries could take for granted in physical copies that they purchase. She sees this as part of a trend away from physical ownership that has come about as the Internet makes it easy to move digital data around. Where people once purchased physical media containing music, movies, etc., now they subscribe to monthly services to have access to it instead.

That rentier mentality is now reaching into the world of books. As [NYU law professor Jason Schultz, co-author of The End of Ownership] elaborated: “For each physical book that a library owns, it can lend it out to whomever it chooses for as long as it wants and the copyright owner has no say in how such lending happens. But here, because digital technology is involved, the publishers are asserting that they can control how/when/where/why libraries lend out digital copies.… In other words, they want to change the rules in their favor and take away one of the most cherished and valuable contributions that libraries make to society—allowing members of the public to read for free from the library’s collection.”

Harvard scholar Kyle Courtney also has a blog post from May elaborating on the matter of licensing. He complains that the Copyright Office’s response to the COVID crisis was not to provide additional guidance on how libraries could make better use of their rights under copyright laws, but rather to expand licensing of digital media. He contends that libraries don’t need licenses to make use of their lending rights provided by first sale law—as long as they paid once for the content, they should then be able to do whatever they want with it.

He also feels that the ReDigi first sale lawsuit decision, in which ReDigi was forbidden from reselling consumers’ purchased MP3s, shouldn’t affect libraries’ rights to relend digital copies of print books, because those digital copies aren’t the licensed MP3s that ReDigi turned on; they’re space-shifted copies of physical media that the library itself owns. Courtney adds:

Secondarily, the ReDigi court raises a significant question as to whether using digitized copies of legally acquired books may be “transformative” in nature – a modern fair use test adopted by the U.S. Supreme Court. In the decision, examining the first factor of fair use, Judge Level, who established the concept of transformative fair use in a law review article, explained that a use can be transformative when it “utilizes technology to achieve the transformative purpose of improving delivery of content without unreasonably encroaching on the commercial entitlements of the rights holder.” This sounds awfully close to correct analysis for modern libraries loaning digital copies of books.

Fair use and digital media have long been uneasy companions. This was examined at length in the 2014 House of Representatives hearings about first sale, in which multiple stakeholders including publishers, libraries, and ReDigi discussed the matter, with no really clear solutions visible. It doesn’t exactly help that ebook stores seem to go to great lengths to hide the fact that consumers are only “licensing” ebooks when they think they’re “buying” them.

But licensing of digital software and media has been going on for literally decades. Even before the consumer market, commercial software such as Bell Labs Unix was sold by license as far back as 1975. Once the nascent commercial PC software market got off the ground in the 1980s, it was quick to follow suit. Selling licenses allowed software companies to make sure they could be compensated per computer installation when software was easy to copy as many times as purchasers wanted. (Not that this stopped them from also implementing DRM to try to make the software less easy to copy.) So, you could say that one major purpose of licenses was to make an end run around first sale from the very beginning.

When commercial ebooks first came on the scene in the late 1990s, they were seen as being just another form of computer software, so they followed suit—setting the pattern for digital music and movies when they came out a few years later. And when you get right down to it, there doesn’t seem to be an easy fix for that.

The whole reason first sale works for physical media is that the copyrighted work itself is indivisible from the physical artifact that can only be possessed by one person at once. Sure, you can copy the work (laboriously for books and other analog media, easily for digital media like CDs or DVDs that can be copied to computer bit for bit), but first sale doctrine doesn’t apply when you keep the original but give a copy away. Pure digital media are nothing but copies; there’s no physical artifact to serve as the token of ownership and nothing to prevent someone from selling or giving away as many perfect copies as they want while still keeping the “original”. So, in order to make sure that the creators of the digital media get duly compensated for each use, we end up with digital media licenses.

Courts have had ample opportunity through the years to take a look at licensing’s impact on first sale and throw it out or make adjustments—indeed, the whole reason first sale happened in the first place was to foreclose on an attempt to sell paper books with restrictive shrinkwrap licenses all the way back in 1908. But even after almost fifty years, we still have software licenses—and in Vernor v. Autodesk, the courts even ruled that they can bind third parties who never agreed to the original license.

As it now stands, first sale doesn’t really differentiate between sale and rental or lending. It just says that as long as you’ve got the physical artifact, you can do whatever you want with it, as long as you aren’t duplicating it for multiple uses at once. Duplicating it for just one use at a time isn’t really addressed, because in 1908 that kind of thing wasn’t even on the horizon. Perhaps there should be an explicit adjustment to first sale addressing space shifting and digital copies. But I don’t think such a thing could come from the Open Library lawsuit.

It seems to me that courts have historically been reluctant to make sweeping changes to the status quo if they didn’t really have to. Many court decisions, particularly Supreme Court decisions, have upheld existing laws, with words to the effect of, “It’s not our job to make new laws. Go bother Congress about it.” For example, in Eldred v. Ashcroft, the Supreme Court held that Congress could extend copyright terms as much as they wanted, as long as each individual extension was for a limited time. If people wanted copyright durations shortened again, they needed to apply to Congress to do that.

Kyle Courtney says that Controlled Digital Lending may be “transformative,” but so what? Transformation (as part of the “purpose and character of the use” test) is only one factor of the four-factor fair use test, and if the other three factors weigh heavily against fair use, transformation is unlikely to be enough by itself to carry the decision. One of those factors is the effect on existing markets, and Controlled Digital Lending would effectively clobber the publishers’ existing market for licensing ebooks to libraries. Given that the courts have never questioned the validity of digital media licensing so far, it seems doubtful they would be willing to wipe out a whole market that depends on it.

But then again, I could also be wrong. Sometimes the Supreme Court has not shirked from upsetting apple carts. In another landmark first sale case, Wiley v. Kirtsaeng, it effectively crippled publishers’ regional market segmentation by ruling it was perfectly legal for consumers to import and resell editions of books that were sold at lower prices in areas with lower living standards. But I still stand by what I said last time I discussed this case: given how the my.MP3.com case fell out, which also revolved around space-shifting purchased media to allow consumers to make fair use of it, I have my doubts that the Internet Archive can expect any outcome in its favor.

Perhaps the fundamental problem is that our digital-era copyight laws are still stuck in the analog era, and the most we’ve been able to do to redress the differences is apply shackles to digital media and turn the crank to try to make them fit that Procrustean bed. Sometimes this can get a little ridiculous. For example, computers copy files into their memory as part of how they operate, and there are cases where those copies have been deemed to violate copyright law, because they are copies. Amid all this confusion, we end up with cases like the Open Library where two parties clash over differing interpretations of the law that seem to disagree with each other—because the law wasn’t actually made to address this kind of issue in the first place.

Perhaps we need a complete revamp of copyright law from first principles, so they make more sense when dealing with easily copied digital files. But realistically, it seems unlikely that will happen. Publishers and studios have a lot more heft in modern society than they did when copyright law was originally codified, and it seems as though they take every opportunity they can to try to shift the copyright balance in their favor. I doubt that any “revamp” of copyright law that comes out of such an environment would be favorable to consumers.

Again, I’m very fond of libraries myself, and I do agree that if they could lend out digital copies of print books they buy, it could be a good thing for consumers. But it might also be a bad thing for publishers and authors, who we rely on to create that content in the first place. There has to be a balance between the rights of creators and consumers, and it remains to be seen just where the courts will place that balance in this case.

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