Who gets access to information?
Plus, what’s upsetting literary Twitter now.
This week had a pretty big headline: A lawsuit that could have major implications on the preservation of and access to books and other rare, archived materials. There’s also, as usual, some Twitter drama.
A different kind of book ban. Internet Archive—an archiving and digitization-focused non-profit that you may know for its Wayback Machine—has lost the case that publishers like Hachette and HarperCollins filed against it in 2020, as the US Court of Appeals for the Second Circuit ruled this week that it violated copyright law with its free digital library. This decision upholds an earlier ruling that the Internet Archive had appealed.
Internet Archive has been around pretty much since popular use of the internet began, in 1996. Today, it offers 20,000,000 freely downloadable books and texts and access to 2.3 million ebooks that are available to borrow for free. So why the sudden crackdown?
Basically, when the pandemic led libraries across the country (also, globally) to shut down, IA rolled out a National Emergency Library, which removed the restrictions that it had in place for its lending. Previously, just one person could borrow a book at a time (a practice called controlled digital lending)—as is the case for physical library books. IA’s March 2020 decision removed waitlists, so any number of people could “take out” an ebook at once.
So why was this a problem? It ultimately has to do with the difference in copyright protection for physical books and ebooks. When a library buys a physical book, “first sale” doctrine of copyright law allows the purchaser to do whatever they’d like with it—including lending it out and ultimately selling it, without the buyer having to pay any additional fees to the author or publisher. The cost of a book to a library is that: the cost of a book. If the book is ultimately damaged or worn from use, the library may have to replace it, but that’s the extent of the expense.
Ebooks work differently. Instead of buying an ebook once, libraries have to license them from the copyright holder. The license may allow a library to lend a book to a certain number of patrons, checkouts, or a certain period of time. These licenses are more expensive than physical books (a cost analysis of former president Obama’s most recent summer reading list by the non-profit Library Futures found that while print books cost an average of $16.38, ebook licenses cost an average of $54.57; over the course of six years, ebooks are more than 10.15 times more expensive than physical books to keep in library rotation).
To lend ebooks for free, Internet Archive used a workaround: It argued that “first sale” doctrine allowed it to scan physical books, and that it was allowed to use those scans in whatever way it saw fit. In this case, allowing any number of readers to access them.
Publishers—who, for years, had side-eyed Internet Archive’s free lending library, as the New York Times’s David Streitfeld noted in his 2023 piece on the case—quickly pushed back. The National Emergency Library was shut down in June 2020 as IA restored its controlled lending system. Since then, more than 500,000 titles have been removed from IA’s library altogether, including Fahrenheit 451 and more than 1,000 other banned books.
Authors are split on the issue. The Authors Alliance—an organization whose stated mission is to “to serve the public good” by expanding access to knowledge and culture—had fiercely advocated on behalf of IA, while literary authors (those who might depend on or care more about sales) tended to side with the publishers. However, as LitHub notes, several prominent authors who first compared IA’s emergency library to piracy later walked back their statements (or deleted their tweets). It is also impossible to note if Internet Archive’s work had any impact on books sales, though book sales did spike during the time the emergency library was active.
This decision could jeopardize the legality of controlled digital lending, which could have negative implications because of the complexity of copyright law. A book—indeed, many of the books that Internet Archive has digitized—can still be under copyright but also be out of print or exceptionally hard to find. This is true for many 20th-century out-of-print books and rare materials. While this legal decision doesn’t stop Internet Archive (or anyone) from scanning these kinds of books through “first purchase” doctrine, it could prevent them from sharing those materials. Think of what that could mean for museums, archives, educators, and academics.
One commenter on Internet Archive’s blog explained how their workplace, an aviation museum, has archived aviation magazines from 1938 to 1946 with the help of both a grant and the Internet Archive. The small museum doesn’t have the time or resources to unpack the copyright complexity of these materials as a periodical itself, and the materials within it could have different permissions: “This is why controlled digital lending was such a godsend. Without it, there is a real risk that these magazines could be lost. It allowed us to preserve them and ensure they could continue to be read by future researchers and historians.” Digitization grants, the commenter added, are also more likely to go to institutions that offer public access to their archives.
I want authors to make enough money to live comfortably. But the restriction of information puts us at further risk of entering a digital dark age. It is a net good for society for information to flow freely to have a greater exchange of ideas and preservation of knowledge and culture—especially at a time when libraries are increasingly under attack and the threat of budget cuts. I don’t have a perfect solution, but I do feel this decision has dangerous implications. Meanwhile, OpenAI claims that its usage of copyrighted materials falls within fair use…are we really going to choose machine over man?
Revising in public. Later this month, New Yorkers will be able to see Jeanine Tesori—the composer who you might know from musicals Kimberly Akimbo and Fun Home—give opera a spin with Grounded. It is an adaptation of a 2013 one-woman show, and Tesori’s version, made in collaboration with playwright George Brant, debuted at the Kennedy Center last year to relatively mid reviews. In a conversation with the New York Times, the creative duo makes it clear that those performances were very much a rough draft. The show at the Met will be 45 minutes trimmer and—hopefully—better for it.
Art and science collide in Los Angeles. This fall, PST: Art—“the Olympics of art for Southern California”—will feature more than 70 exhibitions and more than 800 artists addressing one theme: Art & Science Collide. The initiative is subsidized by the Getty Foundation. The goal, the Getty says, is to: “create opportunities for civic dialogue around some of the most urgent problems of our time by exploring past and present connections between art and science in a series of exhibitions, public programs, and other resources.” The foundation has also launched a Climate Impact Program to help “test and study sustainable exhibition practices while fostering collaboration on minimizing environmental impact within the museum field” during the initiative.
There are no set parameters for how artists and institutions should address the science-centric theme, though about 20% of participants will focus their programming and exhibitions on the climate crisis. I think this is a great example of how the humanities can provide a critical service in education and empathy-building around some of the greatest issues we face today. Art helps us connect with one another—and unity makes problem-solving possible.
Not everyone is convinced, though: “Science is an inquiry seeking to nail down answers to myriad mysteries of the physical and natural world. Art, by contrast, is an inquiry seeking to open up mysteries of human experience,” writes LATimes art critic Christopher Knight, in a statement I am not sure is really true. “Artists find questions relevant to life’s perpetually shifting social parameters, with an aim of enchantment even in areas of pain or distress. Truth arrives in multiple guises, so I’m hoping the oddly framed ‘collision’ being explored between art and science won’t produce any casualties. But you never know.”
What is dividing literary Twitter this week? That would be Brandon Taylor’s latest review for the London Review of Books on Rachel Kushner’s Creation Lake. I will let you make your own judgments. ▲