According to the Wall Street Journal, the Internet Archive and three partner libraries are launching new programs to enable “lending” of e-books. Find a book listed on Open Library and download it to your computer; the downloads come with DRM that expires after two weeks. The net result is a two-week “loan” of the digital copy.
Some of this is old(ish) hat. Open Library has already been helping readers find physical copies at libraries near them, via redirection to WorldCat’s directories. Overdrive already helps local libraries acquire the licenses and technology to “lend” e-books with the permission of the copyright holders. And the Internet Archive itself has been providing free downloads of scanned public-domain books for years.
The new twist is that, for the first time, the Internet Archive will apply the “lending” treatment to at least some books that are still in copyright. Here’s the WSJ’s summary:
And in a first, participants including the Boston Public Library and the Marine Biological Laboratory will also contribute scans of a few hundred older books that are still in copyright, but no longer sold commercially. …
The Internet Archive’s scanning effort hopes to extend digital libraries far beyond the sorts of contemporary e-books sold by Overdrive. The San Francisco-based library has been digitizing older books using 20 scanning centers around the world. Until now, those scans were mostly used to extend access to public domain works, or to give digital access to in-copyright books to the visually impaired.
“We’re trying to build an integrated digital lending library of anything that is available anywhere, where you can go and find not just information about books, but also find the books themselves and borrow them,” said Brewster Kahle, the founder and digital librarian of the Internet Archive.
With its latest project, the organization is making inroads into the idea of loaning in-copyright books to the masses. Only one person at a time will be allowed to check out a digital copy of an in-copyright book for two weeks. While on loan, the physical copy of the book won’t be loaned, due to copyright restrictions. …
Mr. Kahle said, “We’re just trying to do what libraries have always done.”
Having to receive prior permission from a copyright owner in order to scan a book is onerous, said Mr. Blake, of the Boston Library. “If you own a physical copy of something, you should be able to loan it out. We don’t think we’re going to be disturbing the market value of these items.”
This is an interesting development. The Internet Archive has been close-lipped about the precise legal basis for what they’re doing. At some of these in-copyright books are actually being loaned with permission, like Stewart Brand’s The Media Lab. Perhaps that’s the case with all 187, although the comments in the WSJ article would seem to suggest not. The Archive could be making a pragmatic risk analysis on a book-by-book basis, including only books for which it believes the chance of ever actually being sued is negligible, and thinks it can keep the number of mistakes small enough to avoid serious financial danger.
Or, most intriguingly, perhaps the Archive believes it could win a copyright lawsuit. First sale probably doesn’t work on existing precedents, since each electronic copy on a user’s computer counts as a new “copy” for copyright purposes. Neither do the library exceptions, which are narrow and quite technical. This new lending program is certainly consistent with the spirit of both provisions, and there’s a powerful argument that in a digital age, they ought to be amended to explicitly allow this kind of lending. But as written, they probably don’t authorize digital lending.
This leads me to think that the most natural argument would be fair use. The argument here would likely center on the Archive’s nonprofit purpose, the negligible harm to the market for some long-out-of-print books (quite possibly including some orphan works), and the nearby public policies of first sale and library exceptions. The natural counter-argument, however, is that distributing complete copies of books for readers to consume is so close to the core of copyright’s rights and goals that fair use simply cannot stretch that fair. These are non-transformative, substitutive, complete copies of expressive works—so while the Archive would have an argument, the fair use factors arguably tip 4-0 against it. Should it win, it would be a revolution in fair use caselaw. A good revolution, for some, but a revolution nonetheless.
I added a “GBS” tag to the title because the Archive’s actions have implications, both intellectual and practical, for the pending Google Books settlement. For one, should the Archive prove able (legally or in practice) to lend out these books, that would be a significant step in the orphan works debate—a demonstration that there’s more wiggle room under the Copyright Act than many have thought. For another, this confirms the Archive’s role as a kind of Google competitor. A non-profit one, to be sure—something that could place them on different litigation footing in a variety of ways—but still, the new lending program means that there are now two entities trying to make some kind of a play in the digital distribution of in-copyright books without individual permission from the copyright owner.
Ironically, the Archive’s gambit could help Google gain settlement approval. It was the Archive’s lawyer who made the strongest argument at the fairness hearing that the settlement’s core problem is that it works on an opt-out basis. I wouldn’t be shocked if Google brought up the Archive’s book-lending program at some point as a way of trying to discredit that argument. Also, by scanning books and distributing complete copies of them to the public, the Archive makes more credible the plaintiffs’ arguments that the Authors Guild case has always been about the complete books, not just indexing and snippets—which could undercut the objection that the settlement authorizes conduct not at issue in the underlying lawsuit.
As always, Gary Price at Resource Shelf has plenty of links with further details.