A recent court decision on digital copyright supports the status quo for corporations. What could our use of technology have looked like otherwise?
It is the easiest thing in the world to copy and paste digital content. This is why elaborate systems needed to be invented, to push back on the native capabilities of technology. Digital Rights Management (DRM) most often refers to advanced technology that locks in document content, ostensibly to protect author copyright, and certainly to protect corporate holdings. Other forms of “rights management” involve legal agreements, such as the agreement to treat digital books as sales units that libraries have to buy (even at costs well above the paperback version) on a one-to-one relationship with lending practices. If a library buys one digital copy of a given text, they can only lend it out to one user at a time, even if that too goes against the intrinsic capabilities of digital tech.
Early in the pandemic, we witnessed many of our social contract’s givens transform practically overnight. During global lockdowns, government funds were quickly mobilized to support corporations affected by slowed or halted distribution and sales. Meanwhile, individuals struggled with different government views of what everyday citizens were owed to help pay their bills, too. We heard bird sound again in our traffic-stilled neighborhoods. Perfected our sourdoughs. Reflected on the improved environmental impact of our indoor lives.
And when it came to education and work from home, we made major adjustments to keep everyone connected, including a wide range of accessibility accommodations that companies had long insisted were impractical, if not impossible. One of these adjustments included a stepped-up role for the Internet Archive, which launched the National Emergency Library on March 24, 2020 and closed the same on June 16, 2020. This Open Library service filled in a gap created by the closure of brick-and-mortar libraries, and highlighted what the digital world could be, and could offer, in the way of increased connectivity to global resources for all users everywhere.
On June 1, four of the largest book publishers, Lagardere SCA’s Hachette Book Group, News Corp’s HarperCollins Publishers, John Wiley & Sons Inc, and Bertelsmann SE & Co’s Penguin Random House, filed suit against IA for digitizing and lending out some 1.4 million scanned books to users of the Open Library. They did so with the backing and support of the Authors Guild and Association of American Publishers, which were outraged by what they called an “aggressive, unlawful, and opportunistic attack” on livelihood during the pandemic.
At stake in Hachette v. Internet Archive, which on March 24 led to a verdict in favor of the four presses, were two competing legal concepts: the question of copyright itself, and the question of damage done through digital replication of content.
IA had been digitizing copies of content it already owned in physical form, and lending these copies out in a one-to-one relationship with physical copies, the same way traditional libraries do. What it was not doing, even before the National Emergency Library project (which dropped the one-to-one relationship), was paying for separate digital licensing, which has a higher price point and finite window of use. In 2020, a user might purchase an eBook for $15, but a library would be charged an industry average of $40 for limited access to the same. Digital rights advocates argue that this industry practice is not protected by existing copyright law.
Some publishers also introduce further “friction” for digital books by restricting how many copies of a new title a library might acquire during its initial launch: refusing further sales, that is, to maintain the illusion of a limited (print) product, and thus to increase potential profit. “Friction”, whether in the form of direct DRM technologies or legal restrictions on lending practices such as these, amounts to an artificial barrier on technological possibility. Although many publishers also created their own accessibility initiatives during pandemic, they ultimately want primary control of when, and to what extent, they will relax market “friction” around their titles.
Complicating this case was the fact that, even with the National Emergency Library in operation, profits were already surging in publishing, with an uptick in revenue by 2021 of $3 billion. So how could these presses claim that the IA had impacted the industry’s profits? By arguing from the risk of precedent: the idea that if the Open Library was allowed to keep digitizing print copies, other libraries would follow suit, and the whole eBook licensing industry would collapse.
This meant that the primary site for legal scrutiny was this practice of eBook licensing. As Democratic Congress members had written in letters of concern to various eBook lending platforms: “These licensing agreements, with terms set by individual publishers and e-book aggregators, often include restrictions on lending, transfer, and reproduction, which may conflict with libraries’ ability to loan books, as well as with copyright exceptions and limitations. Under these arrangements, libraries are forced to rent books through very restrictive agreements that look like leases.” The IA had argued that their lending practices amounted to “fair use”.
On Friday, U.S. District Judge John Koeltl ruled in favor of the publishers, asserting that IA had indeed infringed on copyright by lending out scanned versions of print books. The act of scanning was mere duplication, by his reasoning, and did not rise to the level of “transformative use” required for an argument of fair use to hold.
The bigger technological picture
What has transpired with this digital rights case echoes other contemporary concerns among creators around “unchecked” technological advancement. An individual creator can already emulate another creator’s style (say, as a photographer or painter working off someone else’s images), but the development of machine learning programs like Midjourney and DALL-E 2 has allowed for the acceleration of this replication, and consequent concern about a loss of livelihood for artists. Similarly, programmers, journalists, writers, and educators have recently undergone panic around the potential uses of large language models like ChatGPT.
READ: A deluge of artificial stories: The chatbot crisis at Clarkesworld
In all these other cases, though, the primary concern has lain with the risk of companies choosing a lower cost alternative to individual human creators: Midjourney over a human cover artist; GPT over financial news reporters.
But some pause should be taken, to consider the bigger picture that reveals itself in Hachette v. Internet Archive, where the verdict very much serves corporate interests above and beyond all possible human actors involved.
Authors do not make much money, in general. A few folks do exceptionally well, the “stars” of our industry, but most struggle, whether with traditional or indie publishing. A self-published author can lay claim to anywhere up to 70 percent of the listed title price for their work (depending on region and distributor), but they lack the infrastructure of a major press to sell those titles in the first place. Many unwittingly lose money simply paying for editing, cover design, and advertising that they hope will move their work up in online algorithms.
Conversely, a traditionally published author makes a low return on the cover price of each volume, somewhere between 5 to 20 percent (more with eBook and audio), which they will not even see until they’ve paid off their initial advance. These advances, while once lucrative, are now quite small, and paid out in multiple instalments. Worse still, if your book fails to perform well, as it often does because presses do not invest equally in promotions campaigns, you’re looking at low advances or even no further sales with that press going forward.
Suffice it to say, if you know an author, you know someone hustling in a product market of low and highly precarious returns. The same goes for most creative fields.
Libraries of the future
Lost in the weeds of industry discourse, though, is the question of what technology could have yielded for us as a species, if not constrained by market anxieties.
In a few episodes of SRSLY WRONG, a podcast that uses a comedic touch for philosophical discourse around our social contract, the hosts explore “library socialism”: the idea of building a society out from principles that already exist in our conception of the library as a public institution. In “Platforms of Freedom: Prefiguring Library Socialism”, the hosts reflect on more inclusive use-cases for digital technology, which would be feasible if not for our current economic and legal systems.
The potential [for better use] is there, and what keeps people from achieving this potential is basically just legal barriers: not a barrier of will and not a barrier of technology.
And there’s also types of systemic barriers. … [T]he reason that it’s hard to change those laws is because the way capitalism functions is that if you produce things and don’t get paid for it, then you can’t live. So, the barriers you start running up against are other people fighting for their own well-being within a system that is pitting their individual well-being, as someone who translates books, or records audio books, or writes books, or does color correction on TV, or whatever thing that they do—their well-being, and their ability to get paid and to survive for what they’re doing, is pitted against this liberatory potential of free information. And the reason we can’t have this nice thing is because we’ve set things up in such a way that, if we have the nice thing, all these other people get screwed over.
This, then, is the deeper question raised by verdicts like this latest lower court decision, which the IA has already stated a willingness to appeal to a higher court.
We are currently developing further legal parameters based less on the constructive potential of new discoveries, and more on shoring up existing societal fault lines.
How could we do differently? What would be necessary from us, to start from a proactive vision of the society we want to live in, and work backwards from there?