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Because internet people get all hot about this and then go into a rage where they make terrible points, usually using the wrong form of “its,” let’s start this column at the end, then go back and fill in the rest.
Usually, after a rambling column lambasting Internet Archive’s attempt to impersonate your local library, I’d give those folks a little credit, a little something more pleasant to go out on.
Here’s that little something: I do support Internet Archive in the gray areas of books.
The gray areas of books include books that are out of print, books that are mega expensive for no real reason, and books where the publisher is just sitting on the rights (usually with no real intentions of driving up pricing, just because they, well, have them).
When Internet Archive is collecting, preserving, and making available things that are otherwise difficult or impossible to come by, I don’t take any issue. When it's acting like an "archive," we're good.
However
That's the end of the good stuff I have to say.
I have a problem with Internet Archive checking out a digital copy of The Martian by Andy Weir. This is not rare, out of print, or difficult to find cheap or even free.
Internet Archive has American Psycho.
Internet Archive has John Dies At The End.
Internet Archive has A TON of stuff that’s readily available, and that’s stuff I have a problem with.
But what really chafes my inner thigh is…well, that’d be my other inner thigh, but what chafes me in a LESS LITERAL sense is Internet Archive pretending it’s a library.
Because it’s not.
The Story Thus Far
Internet Archive was sued by a group of publishers for “mass copyright infringement” because they were purchasing single copies of books, scanning them, and distributing them online.
Internet Archive disagreed that this was copyright infringement.
Unfortunately for Internet Archive, the ruling was not in their favor:
At bottom, IA's fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy and distribute it in place of the print book, so long as it does not simultaneously lend the print book…But no case or legal principle supports that notion. Every authority points the other direction.
Internet Archive plans to appeal this decision, and after the decision came down, they had A LOT to say about being a library:
Libraries are more than the customer service departments for corporate database products…For democracy to thrive at global scale, libraries must be able to sustain their historic role in society—owning, preserving, and lending books.
And here’s the crux, in Internet Archive's own words:
Today’s lower court decision in Hachette v. Internet Archive is a blow to all libraries and the communities we serve. This decision impacts libraries across the US who rely on controlled digital lending to connect their patrons with books online. It hurts authors by saying that unfair licensing models are the only way their books can be read online. And it holds back access to information in the digital age, harming all readers, everywhere.
And now, a disassembly.
Let’s Rewind
The library wing of Internet Archive started with good goals, with the right spirit: The idea was to get books, scan them, and make them available, especially to people with disabilities.
I very much support that, and I’m actually pretty certain this part of what they do is not illegal.
See, back in the 1930s, a bunch of laws got passed because people with blindness were fed up with the bullshit. The Pratt-Smoot Act of 1931 (not to be confused with the Smoot-Hawley Tariff Act of the same year, this Smoot dude was busy) led to some key exceptions to copyright law: libraries were authorized to make accessible copies of printed books, usually in audio or Braille formats, for use by people who can’t read them due to any sort of disability.
In 2010 (time jump, but you’re smart, you can handle it), Internet Archive was all about book accessibility. And to some extent, today, they still are.
You might’ve looked up a book on Internet Archive and seen it available in the DAISY format. This is an audiobook format that’s available only to those who have a disability. You basically fill out a form, get approved, and then you’re able to decrypt DAISY files.
But here’s the thing: The National Library Service already provides this to people with disabilities. Folks can get items by mail or via download 100% free of charge.
Internet Archive argued that the decision against them was a blow to all libraries, but I’m not sure this is so. I think libraries that are working within the law are…fine?
“Unfair Licensing Models”
Internet Archive gets the bulk of its books from Better World Books, which explains why so many of the books they have include library stickers, barcodes, stamps, and other markings.
See, lots of libraries donate their books to Better World Books when they are weeded from the collection.
Better World Books or Internet Archive scan the books, and they become part of the collection.
Your local library does not offer eBooks by scanning physical books. Your library licenses them, for a fee, and those fees vary depending on the type of license (some are lifetime licenses, some are for a limited number of checkouts, some are for a limited timeframe).
What this means is, publishers get to negotiate with libraries (sometimes through a digital vendor like Overdrive or Hoopla) and come to a fair agreement on what a digital copy is worth. Each copy of a book is paid for (or, each checkout on a service like Hoopla triggers a charge). And, libraries agree to provide certain restrictions so that their users are the ones accessing books, not the entire world.
The way libraries manage digital materials, creators and publishers have a seat at the table. Neither side sets the entirety of the rules.
Internet Archive doesn't want to work with publishers and creators. Internet Archive wants to dictate all the terms.
That doesn't strike me as fair at all.
Somebody Think of the Authors!
Internet Archive claims the library's digital licensing system, “... hurts authors by saying that unfair licensing models are the only way their books can be read online.”
But I’m not sure which authors they’re talking about. The Authors Guild said they were "thrilled" by the decision against Internet Archive:
...scanning & lending books w/out permission or compensation is NOT fair use—it is theft & it devalues authors’ works.
And in fact, the Authors Guild claims they offered to sit down with Internet Archive and look at alternative ways digital books might be licensed:
We approached IA years ago to create a license for books used on Open Library but IA refused to engage with us.
If you want to throw Satan Burger on Internet Archive, I think Carlton Mellick III should have a say in that (it's on there, and I'm guessing nobody asked Carlton). I think he should have the option to negotiate what he thinks is fair. I think Internet Archive could've chosen to approach him with an offer.
Jeff Strand should be able to choose what he thinks Pressure is worth on Internet Archive. It's there, and I'm betting nobody asked Jeff what he thought about it.
You'll notice no authors have a problem with local libraries. This is because local libraries don't expect authors to work for free. Libraries treat authors like real people whose labor has value.
Art Should Be Free!
Okay, really quickly for the dipshits:
The reasonable version of this point of view is, “Artists should always have the option of free distribution.”
If the artist wants their stuff to be given for free, if they feel like that’s what’s right, more power to them, and that should always be an option.
But the proposal that all art should be free, taken to its end, would mean that if you created something, The Man should have the right to bust into your house, take it, and distribute it.
It’s not really yours, it belongs to everyone, right?
Information Should Be Free!
I’m a little more open to this one, but I don’t consider The Martian “information.”
Internet Archive of the Future
I think Internet Archive can survive, and I think it can be something good. But it needs to change. Even if it wins its appeal, I think it should change.
If Internet Archive wants to call itself a library, it needs to start acting like a library.
If Internet Archive was more careful with its collection, if they lived in the gray a little bit, I think things would be better. If they made available only those books that are not currently in production and are currently not widely available, it'd change the way a lot of folks feel about it.
If Internet Archive had anything remotely resembling a vetting process, making books available to people with disabilities, people who have little or no library service, or maybe people whose libraries are being destroyed by Moms For Liberty, that’d hit different.
But the game Internet Archive plays today is a distasteful one. They're grabbing and scanning everything, and they're claiming the moral high ground, talking democracy and fairness and then hiding behind the idea of library service.
You can't talk about democracy when you remove a creator's choice in whether or not they get paid for their work.
You can't talk about fairness when you're unwilling to bend even slightly to accommodate reasonable requests from rights holders.
And, please, public libraries are dealing with enough right now. How about not using them as a legal shield?
Get Pressure by Jeff Strand at Bookshop or Amazon
Get Satan Burger by Carlton Mellick III at Bookshop or Amazon
About the author
Peter Derk lives, writes, and works in Colorado. Buy him a drink and he'll talk books all day. Buy him two and he'll be happy to tell you about the horrors of being responsible for a public restroom.
