Book Publishers Are Trying to Destroy Public E-Book Access in Order to Increase Profits

A recent ruling against the Internet Archive for copyright infringement threatens a treasured and critical public institution: our libraries.

The Internet Archive, founded in 1996, is one of the most valuable websites currently on the Internet. Libraries worldwide use the platform to share access to their contents in e-book form, which users can access completely free of charge and regardless of their location or library membership. Its Text Archive offers users from around the world access to nearly 38 million electronic texts, including more than 3.6 million which are copyrighted. The Archive works in collaboration with more than 1,400 libraries to offer free online access to tens of millions of texts, films, audio files, photos, and pieces of software. They also maintain the Wayback Machine, which catalogs 808 billion web pages. In the words of IA’s founder, Brewster Kahle, they seek to provide “universal access to all knowledge.” Based on my personal experience with the Archive, their service comes about as close to attaining this ideal as a single website could hope to.

The Internet Archive functions as the world’s largest digital library and has pioneered the method of “controlled digital lending,” by which it “circulates the exact number of copies of a specific title it owns, regardless of format, putting controls in place to prevent users from redistributing or copying the digitized version.”

I have used the Internet Archive’s text section to check out works of social and political theory not available at my local library—modern classics like Thomas Piketty’s Capital in the Twenty-First Century,and Michael Parenti’s Blackshirts & Reds. It allowed me to read Trevor Aaronson’s book, The Terror Factory, which inspired my recent Current Affairs article on the need for a modern Church Committee. During college, it saved me hundreds of dollars on textbooks that I would have otherwise needed to purchase from my school’s bookstore and allowed me to cite books with ease while pulling all-nighters to finish my term papers. A quick skim through IA’s staggering amount of content is sure to yield something fun and fascinating. Just from scrolling through randomly for a few minutes, I discovered an emulator of NBA Jam 1993 for the Sega Genesis, a text purporting to be “The First Complete Cook Book to be compiled in Canada,” several episodes of I Love Lucy, The Muppet Show and The Beverly Hillbillies, and an obscure but whimsical children’s picture book titled The Man Who Accidentally Wore His Cravat to a Gymnasium. They have collections of tens of thousands of old-time radio programs, Russian audiobooks, live recordings of Grateful Dead performances, pieces of microfilm, animated shorts, and even a modest trove of Hentai for those so inclined. 

As its founder envisioned, the Internet Archive may indeed be the closest thing the modern world has to the Library of Alexandria, the sprawling marble edifice that stood for six centuries as the ancient world’s foremost repository of knowledge. And in a similar fashion to its forebear, which legend says was set ablaze amid Julius Caesar’s rapacious conquest of Egypt, much of the Internet Archive’s contents may too be destined for destruction because of book publishers’ pursuit of profit.

In March of this year, four of America’s largest publishing companies—Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House—won a lawsuit against the Internet Archive. The publishers argued that the Internet Archive committed copyright infringement by hosting digital scans of copyrighted books without publishers’ permission. A federal judge in New York, John G. Koeltl, agreed with them in summary judgment, ruling that by scanning physical books for online viewing, IA creates “derivative works” and therefore needs permission from the publisher.

The lawsuit was filed in June 2020, shortly after IA suspended its National Emergency Library policy,, which temporarily allowed for the Archive to lend more copies of books than they owned due to the closure of physical libraries. However, the publishers’ lawsuit was not limited to this short-lived policy; they objected to the IA’s lending practices in general, which have been in place since 1996.

The publishers argued that the Internet Archive practices a form of “willful digital piracy on an industrial scale.” Judge Koeltl agreed, saying that although IA does not actually increase the number of books in circulation, “the Publishers hold exclusive publishing rights” and the IA “infringed the plaintiffs’ copyrights in 127 books (the “Works in Suit”) by scanning print copies … and lending the digital copies to users of the defendant’s website without the plaintiffs’ permission.” He says that they can only legally digitize books that are considered to be in the public domain,1 which would force them to remove more than 3.6  million copyrighted works currently on the site.  

Koeltl dismissed the Archive’s argument that their practices constitute “fair use,” which allows copying for criticism, comment, news reporting, teaching, scholarship, or research. To determine if a piece of content falls under fair use, judges consider nonprofit or educational purposes, transformation, and market effect. In his opinion, Koeltl gave lengthy explanations for why he believes IA is not fair use. Mike Masnick, the founder of Techdirt and one of the most prolific writers on fair use in the Internet age, gives Koeltl’s tortured logic the verbal flogging it deserves, arguing that the Archive’s lending is transformative, not for profit, and no more impactful to the market than the average library. But even setting aside the legal question of copyright infringement, we should still consider the destruction of the IA to be a bad thing for society. At bottom, this is a case of a cabal of powerful commercial interests using the legal system to bully a public organization that offers a superior service, completely for free, without stealing anything.

Let us take a moment to consider what the Internet Archive actually does. Aside from the act of converting purchased books into a new format, the Archive uses lending practices that are functionally identical to those that tens of thousands of libraries use every day. If we believe in principle that libraries should be legal, it’s hard to buy any argument that the Archive’s activities should be prohibited under copyright law. They do not profit from the work of others, nor do they create more copies of works without compensating the authors and publishers. In order for a book to be added to the Archive, it must first be purchased from a publisher by a member library or by IA itself. After being scanned by one of the Archive’s “Scribe” machines, a book is placed in a giant warehouse with a mountain of other books that have been digitized and taken out of physical circulation. 

As Koeltl explains, “if IA owns one non-circulating print copy of Laura Ingalls Wilder’s Little House on the Prairie (1932), and three partner libraries each contribute a copy of the book, IA would lend its digital copy of Little House on the Prairie to up to four patrons at a time.”

This seems wholly consistent with the spirit of the long-established “right of first sale” that has been foundational to American copyright law for more than a century and is the cornerstone of library lending. This right was first recognized by the Supreme Court in 1908 and later codified into law. The heart of this doctrine, as stated by Justice William Day in the majority opinion in Bobbs-Merrill Co. v. Straus,2 is that “one who has sold a copyrighted article, without restriction, has parted with all right to control the sale of it.” According to the American Library Association, “The copy becomes like any piece of physical property; you’ve purchased it, you own it. You cannot make copies and sell them—the copyright owner retains those rights. But the physical book is yours. First sale has long been important for libraries, as it allows them to lend books without legal hurdles.”  

It’s important to keep in mind that the physical copies of books made available on the Archive do not continue to circulate. Instead, they sit in a warehouse. So, it seems more appropriate to say that the Archive’s process of lending consists of merely buying a book and changing its state of matter from physical to digital. 

So if the publishers are still being duly compensated, why are they so intent on shutting IA down?  

The Internet Archive provides libraries with an alternative to the current, predatory model that exists for hosting e-books. When a library hosts a book digitally, they do not simply pay what an ordinary consumer would pay for that book. Libraries pay additional licensing fees to publishing companies to host e-books through services like Libby and OverDrive, which can cost three to five times as much as the book itself and only last for a few years at a time. (Gargantuan licensing fees for e-books have become a central pillar of the publishing industry’s profits: according to Koeltl’s opinion, Penguin reaps $59 million per year just from e-book licensing to libraries, while HarperCollins makes nearly $47 million.) This is a direct transfer of wealth straight from local taxpayers to wealthy publishing houses, and it’s worth considering how much more your local library would be able to do if they weren’t having so much of their budget extracted.

The American Library Association briefed Congress in 2019 on this ludicrous price gouging. To purchase one copy of David Kahn’s The Codebreakers, a consumer would pay $59.99 for lifetime e-book access. Simon & Schuster, which owns the e-book rights, charged libraries $239.99 to host and loan out that e-book to one person at a time, for just two years. To lend it for 20 years, the library would pay about $2,400 (about 40 times what a consumer would pay for lifetime access).

E-books are more popular than ever, with libraries and schools lending over 500 million in 2022, up from 15 million in 2010. To give people what they want, libraries are forced into a devil’s bargain. They can remain stuck in the past by only offering physical books and risk losing the many patrons who understandably prefer the convenience of an e-book. Or they can purchase licenses from corporations that want to wring them out like sponges, which leaves them with far less to spend on everything else.

Either way, they lose. Libraries nationwide have reduced their collections over the years, in part due to the high cost of e-books, as their budgets have not kept pace with the rising prices. According to Michael Blackwell, a library director in Southern Maryland, this forces them to prioritize bestsellers and ignore new authors, while allowing the licenses of older, more obscure books to expire or never be purchased in the first place.3

The industry and some authors’ groups claim that the Internet Archive’s practices rob authors of royalties for their books that would be accrued through library licensing. But on average, only 25 percent of these exorbitant e-book fees actually go to the authors while 70 percent go to the publishing company, according to 2021 calculations by publishing industry reporter Jane Friedman. Publishers function purely as parasitic middlemen, perched Smaug-like on top of their intellectual properties, demanding as much payment as they can extract while adding zero actual value to the product.

While the publishing industry treats this as an issue of authors’ rights, many other authors have criticized the ruling. One group of more than 1,000 authors, including Naomi Klein, Chuck Wendig, and Neil Gaiman, signed onto a statement calling for publishers to “end lawsuits aimed at intimidating libraries and diminishing their role in society,” including the Internet Archive. It’s clear that publishers don’t actually care what authors think of their lawsuit, so we can discount their claim to be acting on behalf of writers’ interests.

Experts testified in the recently decided suit that the Archive’s lending did not reduce sales or library book checkouts, even during the pandemic when it temporarily abandoned its one-to-one lending policy. They also cited a “discovery effect,” by which consumers “decide they enjoy the books they have borrowed through IA enough to purchase those books and recommend them to others.” This is demonstrated by the fact that sales of many of the works in the lawsuit “slightly worsened” relative to other books after they were removed from the Archive. Susan Hildreth of the Public Library Association also pointed out that even if libraries spend less money on individual e-books, they would just spend that money on additional e-books and physical books from the publishers. If a library has a fixed budget for buying books, all of it is going to go to publishers no matter what. Judge Koeltl totally waved this evidence away. 

What is really at stake is whether e-book publishers reserve the right to charge libraries several times over for a single copy of their books and whether libraries can, in turn, seek an alternative to this state of affairs.

When I interviewed the Internet Archive’s Brewster Kahle, he argued that the case is not just about the rights of IA to lend books. The case, he says, is “all about whether libraries can own digital books in the same sense that we owned physical books.” Publishers have taken advantage of the lack of first-sale protections for digital content, which gives them sole control over the distribution of their files. The current model for e-book lending, Kahle says, turns publishers into “content landlords,” while libraries “don’t get anything of enduring value” despite paying exorbitant fees.

With this in mind, it’s clear that the legal assault on the Internet Archive does not exist in isolation. It is one battle in a larger war being waged by publishers who seek a transfer of wealth from the hands of the public into their own pockets. They are using the digitization of books to turn libraries—and by extension, the public—into permanent renters, rather than owners, of knowledge (similar to how software or music is now paid for on a monthly licensing or rental basis instead of the user owning a copy of either). 

As state laws have been proposed to rein in e-book price gouging, they have been met with aggressive lobbying4 and legal threats from the publishing industry. With industry backing, Association of American Publishers has fought to block state legislation that would require publishers to lend to libraries “on reasonable terms” (six states have legislation on this issue). One law in Maryland passed both chambers of the state legislature unanimously but was struck down by a judge after the AAP launched a lawsuit. Another similar measure passed in New York  but was vetoed by Governor Kathy Hochul, who cited the Maryland lawsuit and echoed the AAP’s talking points.

The suit against the Internet Archive highlights the fundamental antagonism that publishing companies have toward libraries. Libraries are in fact radical institutions because they create collective ownership and challenge the idea that we have to pay for everything—which explains why many publishing companies openly describe libraries as threats to their bottom line. 

Macmillan CEO John Sargent says libraries’ lending of e-books is “a thorny problem” for publishers. For library patrons, he says, “It’s like Netflix, but you don’t pay for it. How is that a good model for us?”

In another example, when the Toronto Public Library ran a cheeky ad declaring a “Black Friday Special: 100% Off All Books! Print! Digital! Audio!” Kenneth Whyte, the publisher of Sutherland House Books, ran to complain about it in a much-maligned Globe and Mail editorial, saying “It was clever. It was hilarious. Except, perhaps, to people who make a living selling books” and that “booksellers are in competition with libraries whether they want to admit it or not.”

Mary Rasenberger is a lawyer who has represented the publishing industry in copyright cases and the CEO of the Authors Guild (according to Open Secrets, they have a lobbying arm), which has vociferously defended the publishers in their suit against the Internet Archive. She makes even more explicit the goal of limiting ease of access for library patrons: “It’s just important to have some roadblocks…so that it doesn’t become too easy for readers who can afford to buy e-books,” she said during a live panel. Her idea of “roadblocks” mirrors the neoliberal practice of means testing as a way to limit people’s access to public resources.

The Internet Archive, then, competes with booksellers just as libraries do, but on a larger scale. The old adage, which Judge Koeltl references extensively, is that “You can’t compete with free.” But the Internet Archive has managed to remain free for nearly 30 years through grants and donations from libraries and patrons because it has demonstrated itself to be a valuable service that is worth sustaining. Their only crime—unless you want to question the right of all free libraries to exist—is that their services are too universal and convenient. 

Kahle has said that the Archive will appeal the decision. But if IA goes down or is reduced to a shell of itself as a result of this lawsuit, it will be a prime example of how the profit motive of large corporations works against public interests, not for them. Its destruction would be a tremendous loss to anyone who values the free exchange of information and views literacy as a social good.  

Without the Internet Archive, finding books would be more costly, inconvenient, and unreliable. Students and researchers would have less access to books, and people who read for pleasure would have less choice, as public libraries offer a fraction of a percent of what IA does.5

The landscape of information available for free online will be severely degraded. IA’s resources, Kahle says, are used by all kinds of professionals, from genealogists to carpenters to cooks. Many of the books on their site are copyrighted but no longer in print. “When people donate,” Kahle says, “the thing they are really excited about is finding books they can’t find anywhere else.” He later added that it is often “the library of last resort” for users. IA also provides more than a million copies of books meant to be read by people who are blind or have dyslexia, many of which are copyrighted.

Innumerable historical texts would become inaccessible. Kahle pointed out that the Internet Archive is a backbone for Wikipedia, with more than 50,000 of its books having been cited by the digital encyclopedia. “It has become a kind of infrastructure for our digital world,” he says. “A lot of the use of our books is actually only for a few minutes.” Mostly, people use it for “checking a citation, getting a quotation, or confirming a Wikipedia assertion. Students love it because they’re not allowed to quote from the encyclopedia, but they are allowed to quote from real books.” 

Without real books around, the quality of the remaining options for those seeking to learn about history and politics on the Internet is much more dubious. While many nonfiction books are not fact checked, you can always check the presence and quality of the author’s citations. Kahle points to the fact that many low-quality, propagandistic news sources are free to read and share while more heavily researched academic and magazine articles tend to require a subscription. Agenda-driven think tank reports are extremely easy to stumble across. And there’s even less barrier to entry in the case of inane YouTube videos and low-effort social media posts that are ubiquitous online and that essentially anyone with an opinion can create.

According to the lawsuit, the Internet Archive lends out 70,000 e-books every day. Its internal data shows that nearly 20 million unique users have accessed the site since its inception. If we reduce people’s book options or make books more difficult to access, many users may simply read less. America already has a horrifying crisis of literacy: A majority of American adults—130 million people—cannot read at a 6th-grade level. The average American reads for personal interest just 16 minutes per day, and a 2018 survey found that  24 percent said they hadn’t read a single book in the prior year. Young people especially are increasingly giving up books for Internet browsing. According to a 2018 study by the American Psychological Association, 1 in 3 U.S. high school seniors did not read a book for pleasure in 2016. In the same time period, 82 percent of 12th graders visited sites such as Facebook, Twitter, and Instagram every day.  

Books, which are comparatively costly and time-consuming to obtain, also increasingly have to compete with the immediate gratification of social media, video gaming, television, and online news articles. But surveys indicate that the convenience of e-books may help reverse the trend. According to Pew Research, “Those who read e-books report they have read more books in all formats,” while a U.K. survey showed that “62 percent of e-reader users say that access to free digital books has led them to titles they otherwise wouldn’t have picked up.”

If we want to have a culture where reading is valued, then books will need to compete for our attention with other media. IA is the only service that makes books as easy to view as a tweet, a YouTube video, or a Fox News article. The publishers who launched this suit—HarperCollins, Penguin Random House, Hachette, and Wiley & Sons—often make overtures toward “supporting literacy” in their marketing. I can think of no better way to do that than by making as wide a range of literature and other writing as accessible as possible.

In the conclusion to his opinion, Judge Koeltl wrote:

“IA argues that its digital lending makes it easier for patrons who live far from physical libraries to access books and that it supports research, scholarship, and cultural participation by making books widely accessible on the Internet. But these alleged benefits cannot outweigh the market harm to the Publishers.” 

This is stunningly candid. Judge Koeltl is asking us to accept that a website that provides an unequivocal benefit to humanity be shut down so that these corporations can continue to profit handsomely without having to provide us with anything new to justify that profit.  

This contradicts everything we are supposed to believe about the virtues of free-market capitalism as a system. The competition between private commercial interests is supposed to spur innovations that lead to human flourishing. But what we have here is a nonprofit organization that is providing a better service than the for-profit ones. Instead of competing in the market by improving their product and reducing their prices, the publishing profiteers fight like cowards, using the legal system to destroy a valuable public service to protect their own profits. The economy is supposed to work for us, not the other way around. To accept this ruling is to consent to the idea that innovations that benefit everyone must be put on hold because they infringe upon the prerogative of a few profiteers. 

  1. Works do not become public domain until 95 years after their creation (with some exceptions). This extremely arbitrary length of time is actually a contrivance brought about by Disney lobbyists who have fought aggressively for decades to prevent Mickey Mouse, who first appeared in 1928, from ever becoming a public domain character. 

  2. In this case, the majority ruled that book publishers could not sue Macy’s retailers for selling their books below a price prescribed by the publisher. 

  3. Meanwhile, in the absence of robust public services elsewhere, libraries have become a sort of catch-all hub for community health initiatives. According to NPR, many now hire social workers, run vaccination and health clinics, and stock Narcan, the antidote to opioid overdoses. This is done all in an effort to pick up the slack in communities that desperately need them, but their budgets have not risen to accommodate this. 

  4. The Association of American  Publishers (AAP) has spent more than $18.5 million on lobbying over the last 15 years. Its lawsuits have been helped along by the Copyright Alliance, which consists of media giants like NBC Universal, News Corp, and Sony. Its member companies donated $31 million to federal politicians through PACs just during the 2020 cycle. 

  5. According to data from Wordsrated’s 2022 report on the State of U.S. Public Libraries, there are about 1.77 billion works contained within the 17,468 public libraries in America. Around 55 percent of these works are digital. This means that the average American library has around 55,700 e-book titles available. This is around 0.2 percent of the more than 37 million books and texts in the Internet Archive. Even if we compare to the Archive’s Modern e-book library, which allows for books to be read in a similar format to those from a public library, the average public library only has around 2 percent of the more than 2.3 million modern e-books the Archive offers. 

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