Authors slam publishers’ lawsuit against ‘Open Library,’ push for new e-book policies

CORRECTION: An earlier version of this report included an author among those who signed onto the letter who pulled their name before the list was publicly released.

Hundreds of authors signed a letter slamming major publishing companies’ lawsuit against a free digital library, and urged publishers to update their policies to allow libraries to purchase copies of e-books. 

The open letter published Thursday escalates the battle librarians and digital rights group Fight for the Future are waging against publishers over access to e-books, an issue that librarians say has become increasingly important due to spikes in e-book lending since the start of the COVID-19 pandemic. 

More than 300 authors, including “Coraline” author Neil Gaiman, signed onto the letter, organized by Fight for the Future, calling for publishing companies and book industry associations to end lawsuits the authors said are aimed at “intimidating libraries.”

“We urge all who are engaged in the work of getting books into the hands of readers to act in the interests of all authors, including the long-marginalized, midlist, and emerging authors whom librarians have championed for decades,” they wrote. 

The letter calls out a lawsuit from four publishers, Hachette Book Group, Harper Collins, John Wiley & Sons and Penguin Random House, filed against the Internet Archive’s Open Library. 

The Internet Archive’s Open Library functions differently in lending digital copies of books than traditional libraries, in that it doesn’t acquire e-books through publishers.

The organization instead runs the Open Library by scanning physical copies of owned books and loaning them out through a process librarians call controlled digital lending. The books are loaned out on a timed basis, and the number of digital scanned copies available for patrons is limited to how many physical copies the organization has. The physical copies are also stored and not on rotation, meaning the digital copy of each takes its place. 

But the publishers suing the Internet Archive argue the process violates copyright law by creating a new digital copy of the book. Terrence Hart, general counsel of the Association of American Publishers, which represents all the publishers named in the suit, issued a statement criticizing the letter organized by Fight for the Future. 

“That authors and publishers support libraries is not in dispute and most certainly not at issue in the infringement case against the Internet Archive, which is not a library,” Hart said in a statement. 

“If an author chooses to permit the copying of print books into e-books, that is a choice they are empowered to make as to their own works. The Internet Archive robs authors of that choice,” Hart added. 

Hart previously told The Hill the Open Library is a “pirate site” rather than a library. 

“This lawsuit is about stopping systematics theft, and Internet Archives is a pirate site that’s not acting the same way legitimate libraries do in paying for the e-books they led and supporting authors and publishers,” Hart said in an interview with The Hill this summer. 

The Association of American Publishers argues that the Internet Archive’s alleged violation of copyright law cuts into profits authors would earn from e-book sales. 

At the heart of the issue is the way publishers sell copies of books to libraries. Or rather, that they do not sell them to the institutions.

Publishers have licensing deals with libraries allowing them to loan out books under terms that bind e-book copies to being circulated either for a certain period of time or for a certain number of circulations. After that time or number of circulations are hit, libraries must re-enter licensing agreements. 

Librarians say that the process makes acquiring e-books for patrons more expensive than traditional books, which they can purchase at a standard price and circulate as long as the book holds up. 

“Generally speaking, a quality hardcover certainly, and even some good quality paperbacks, will last longer than the license allows for. So at a far less price, you’re getting much more bang for your buck,” said Michael Blackwell, director of St. Mary’s County Library in Maryland and organizer for the group Reader’s First. 

Blackwell said he’s seen physical copies of books that will last on the shelf for over 100 circulations and sit on the shelf constantly circulating for four or five years. Even after a book is no longer able to circulate on the shelf it can be sold, he said. 

The more than 300 authors who signed onto the Thursday letter urged publishers to back off this method of licensing ebooks to libraries. 

“[Publishers should] enshrine the right of libraries to permanently own and preserve books, and to purchase these permanent copies on reasonable terms, regardless of format,” they wrote. 

“It is past time to determine a path forward that is fair to both libraries and authors—including a perpetual model for digital ownership based on the cost to maintain a print edition,” they added. 

But publishers argue that selling e-books to libraries the same way physical books are sold and loaned would cut into authors’ profits.

Hart described loaning e-books as having less “friction” than traditional books since they are not getting physically handled between patrons, and since patrons can access and return the e-books from anywhere with just their own personal device. 

“Publishers have licensed the books to enable libraries to be able to lend them out in a way that’s analogous to physical books, in a way that works for libraries, works for readers, but that licensing is critical in order to be able to make sure that publishers are able to get a return on investments and are able to pay their authors royalties and able to continue to support and create new books in the future,” Hart said. 

The open letter may bolster the Internet Archive’s case in part by offering an alternative perspective to that of The Author’s Guild, an industry group that has filed a brief in support of the publishers’ case and argues that the Open Library hurts authors. 

But the Internet Archive still faces an uphill battle. Intellectual property law experts who spoke to The Hill said the best scenario for the Internet Archive to succeed hinges on whether or not their actions are deemed a fair use exception under copyright law. 

The outcome of the case could go beyond the scope of whether or not the Open Library can continue, and could shape how libraries function going forward if more institutions are able to embrace this form of controlled digital lending.“Certainly if it was decided in favor of Internet Archive, that some or all of internet archives activities counted as fair use, that would be a huge shift in the current balance that’s struck between copyright owners on the one hand, and users and distributors on the other hand,” said Robert Brauneis, an intellectual property law professor at The George Washington University Law School.

–Updated at 8:26 a.m.