Libraries Have Never Needed Permission To Lend Books, And The Move To Change That Is A Big Problem

from the permission-culture dept

There are a variety of opinions concerning the Internet Archive’s National Emergency Library in response to the pandemic. I’ve made it clear in multiple posts why I believe the freakout from some publishers and authors is misguided, and that the details of the program are very different than those crying about it have led you to believe. If you don’t trust my analysis and want to whine about how I’m biased, I’d at least suggest reading a fairly balanced review of the issues by the Congressional Research Service.

However, Kyle Courtney, the Copyright Advisor for Harvard University, has a truly masterful post highlighting not just why the NEL makes sense, but just how problematic it is that many — including the US Copyright Office — seem to want to move to a world of permission and licensing for culture that has never required such things in the past.

Licensing culture is out of control. This has never been clearer than during this time when hundreds of millions of books and media that were purchased by libraries, archives, and other cultural intuitions have become inaccessible due to COVID-19 closures or, worse, are closed off further by restrictive licensing.

What’s really set Courtney off is that the Copyright Office has come out, in response to the NEL, to suggest that the solution to any such concerns raised by books being locked up by the pandemic must be more licensing:

The ultimate example of this licensing culture gone wild is captured in a recent U.S. Copyright Office letter. Note that this letter is not a legally binding document. It is the opinion of an office under the control of the Library of Congress, that is tasked among other missions, with advising Congress when they ask copyright questions, as in this case.

Senator Tom Udall asked the Copyright Office to give its legal analysis of the NEL and similar library efforts, and it did so… badly.

The Office responded with a letter revealing their recommendation was not going to be the guidance document to ?help libraries, authors, and online outlets,? but, ultimately, called for more licensing. It also continued a common misunderstanding of an important case, Capitol Records, LLC v. ReDigi Inc., 910 F. 3d 649 (2d Cir 2018).

We’ve written about the Redigi case a few times, but as Courtney details, the anti-internet, pro-extreme copyright folks have embraced it to mean much more than it actually means (we’ll get back that shortly). Courtney points out that the Copyright Office seems to view everything through a single lens: “licensing” (i.e., permission). So while the letter applauds more licensing, that’s really just a celebration of greater permission when none is necessary. And through that lens the Copyright Office seems to think that the NEL isn’t really necessary because publishers have been choosing to make some of their books more widely available (via still restrictive licensing). But, as Courtney explains, libraries aren’t supposed to need permission:

Here?s the problem though: these vendors and publishers are not libraries. The law does not treat them the same. Vendors must must ask permission, they must license, this is their business model. Libraries are special creatures of copyright. Libraries have a legally authorized mandate granted by Congress to complete their mission to provide access to materials. They put many of these in copyright exemptions for libraries in the Copyright Act itself.

The Copyright Office missed this critical difference completely when it said digital, temporary, or emergency libraries should ?seek permission from authors or publishers prior? to the use. I think think this is flat-out wrong. And I have heard this in multiple settings over the last few months: somehow it has crept into our dialog that libraries should have always sought a license to lend books, even digital books, exactly like the vendors and publishers who sought permission first. Again, this is fundamentally wrong.

Let me make this clear: Libraries do not need a license to loan books. What libraries do (give access to their acquired collections of acquired books) is not illegal. And libraries generally do not need to license or contract before sharing these legally acquired works, digital or not. Additionally, libraries, and their users, can make (and do make) many uses of these works under the law including interlibrary loan, reserves, preservation, fair use, and more!

And, yes, Congress has already made it clear that libraries hold a special place with regard to copyright:

Libraries can make these uses of their legal acquired books without permission because the copyright system, via Section 109 first sale, maintains the market balance long recognized by the courts and Congress as between rightsholders and libraries. Libraries sit right in the middle of the economic purpose of copyright (we buy the books!) and the access purpose of copyright (we loan the books!) ? or in the Constitutional narrative, ?to Promote the Progress of Science and the Useful Arts? libraries provide unfettered access and freedom to the books they purchase.

When a library legally acquires a book via a sale, it has the right, under the first sale doctrine, to continue to loan that work unimpeded by any further permission or additional fees to the copyright holder. No license is needed. A digitized copy replaces the legitimately acquired copy, not an unpurchased copy in the marketplace. To the extent there is a ?market harm,? it is one that is already built into the transaction and built into copyright law: libraries are already legally permitted to circulate and loan their materials. The authors have been paid (as have the publishers) in that first transaction.

Congress, when it legislated the copyright exceptions, made it possible for libraries to fulfill their ?vital function in society? by enabling the lending of books to benefit the general learning, research, and intellectual enrichment of readers by allowing access to these materials. And arguably, now that we are in the 21st century, why should we not use technology to allow this loaning to continue online? Let libraries use technology (the same used by the publishers, for example) to INCREASE access to these works, especially during a pandemic.

Courtney then goes on to point out that the whole “license everything” concept fundamentally eviscerates the concept of ownership of private property. Once we’ve bought something, we should be able to do what we want with it, and the push here to now force libraries to get licenses for books they already own is a direct attack on property rights:

Licenses continue to eviscerate ownership rights for patrons, libraries, and the general public under very restrictive terms. And, these licenses are absolutely not the equivalent of a purchase. These vendors may use the word ?buy it now? or ?purchase? or ?for sale? but, when you read the fine print ? it is absolutely the opposite….

When a library or patron agrees to these licenses, at best they are merely renting or leasing temporary access to these works.

Even worse, because a library has special exceptions to copyright as built into law, when we move into a copyright world, libraries are effectively giving up those rights:

Or, in some licenses, the terms are so limited that libraries or their patrons are restricted from the very uses, exceptions, or exemptions made legal in the Copyright Act. I pulled an example of one of the more common licensing clauses:

?Except as explicitly authorized in this License, you agree not to archive, download, reproduce, distribute, modify, display, perform, publish, license, create derivative works from, or use content and information contained on or obtained from the Work….? and ?articles, chapters, and other materials made available via this License may not be used for the purpose of interlibrary loan…?

This license takes away nearly all the copyright exceptions for libraries, and many exceptions for the public as well. Licenses do often restrict use beyond what copyright law might otherwise allow. And the licenses do not have consistent language relating to library uses, so they are all different, and all full of boilerplate limiting terms. What other rights are these licenses interfering with?

And after digging into the variety of ways in which copyright law is structured, Courtney makes it clear that libraries have a clear first sale right to lend out books they have in their possession:

Additionally, under Section 109, first sale, a library can place a book on reserve and let it be accessed or checked out as many times as it can. Each patron uses and returns the book ? and there is no license, no additional payment, and the library or user does not have to seek any further permission from the copyright holder. Some books have been read hundreds of thousands of times on reserves! The author and publisher were compensated for that first purchase, and from there, the access and loaning can continue unfettered.

As for the ReDigi case regarding digital first sale, Courtney points out that the Copyright Office is blatantly misreading it to make it say a lot more than it really does, specifically with regard to how it impacts libraries and their first sale rights:

Here is the main difference: these ReDigi resales the court examined were exact, bit-for-bit replicas of the original sold in direct competition with ?new? mp3s online through other marketplaces, such as iTunes. The substitutionary effect was clear, especially since the mp3 format is the working market experiencing harm.

However, again, a library is not a commercial for-profit company. The books they own, via first sale, are not licensed mp3s. There is clearly a distinguishable analysis here.

For digitized copies of legally acquired print books under the first sale doctrine, the substitutionary effect is

far less clear. With most 20th-century books, the vast majority of books in a library?s collection, the market has almost been exclusively print-based. And, for those books, some new evidence from the Google Books digitization project suggests that digitization may in fact act as a complementary good, allowing digital discovery to encourage new interest in long-neglected works.

Secondarily, the ReDigi court raises a significant question as to whether using digitized copies of legally acquired books may be ?transformative? in nature ? a modern fair use test adopted by the U.S. Supreme Court. In the decision, examining the first factor of fair use, Judge Level, who established the concept of transformative fair use in a law review article, explained that a use can be transformative when it ?utilizes technology to achieve the transformative purpose of improving delivery of content without unreasonably encroaching on the commercial entitlements of the rights holder.? This sounds awfully close to correct analysis for modern libraries loaning digital copies of books.

There’s a lot more in Courtney’s analysis, but it is very thorough, and a fairly complete debunking of the Copyright Office’s (and others’) push that the answer to libraries being shuttered due to the pandemic is merely “more licensing.”

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Comments on “Libraries Have Never Needed Permission To Lend Books, And The Move To Change That Is A Big Problem”

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This comment has been deemed insightful by the community.
Anonymous Anonymous Coward (profile) says:

Pay me, pay me, pay me

Yet another example of the Copyright Office being co-opted by the ‘everything must be owned, and by owned we mean controlled and monetized on a per use basis’ crowd (read one chapter tonight, another payment is due tomorrow for the next chapter).

This push for control is just another step on their way to a one way Internet where they ‘control’ all the content and want payment for even ‘thinking’ about their IP. You cannot create because we are the creators (by which we mean we control the creators ability to get their works out there) and we control all original thought. Culture, ha! It ain’t culture unless we say it is and have proper income even if you are just singing to yourself in the shower.

The open Internet scares the hell out of them. Give them an inch and they will take ten miles. Now, how do we get the also co-opted congresscritters to see things from our side, rather than theirs.

This comment has been deemed insightful by the community.
Samuel Abram (profile) says:

The problem with fair use

Is that it’s only there for people who can afford it (i.e. people who can afford lawyers). If these libraries (and other institutions whose work is for educational purposes (e.g. schools and Reading Rainbow)) had access to copyright lawyers, then they would have a really strong fair use claim as there is an educational purpose to what they are doing.

But like I said, Fair Use is only for people who could afford legal representation.

This comment has been deemed insightful by the community.
Anonymous Coward says:

This is the reason why I own tens of thousands of ebooks

I have purchased ebooks for decades now and I have amassed a collection that allows my children and family members to continue reading even during this pandemic. I only get ebooks that have no DRM or where I can strip it out upon purchase. None of my books are useless to me and I have converted many into newer formats as new standards emerge. The entire collection fits on a 256 GB MicroSD card along with my entire song library and family picture collection with room to spare.

Yes, I have spent multiple thousands of dollars acquiring my collection but I control it and no one can retroactively remove books that I now own.

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nasch (profile) says:

Re: Re: This is the reason why I own tens of thousands of ebooks

Your entire collection fits in 256 GB? HAHAHAHAHAHAHAHA!!!

That could be something like 175 million pages of text. If it takes 2 weeks to read a 1,000 page book, which I think would be a pretty good clip, that’s over 2500 years of reading material if I did my math right. Maybe with an e-book format instead of plain text it’s less than that, but even if it’s a tenth that much, it’s well over a lifetime of reading.

So how many books do you need?

Middle Bass Island (profile) says:

Re: Re: Re: This is the reason why I own tens of thousands of eb

Why would you assume that books are text only? I have a number of PDFs of coffee table picture books that are 256MB to 512MB or more in size. I have PDFs of lots of 19th century books with a lot of photos and drawings embedded. And I have one PDF 1.15GB in size with over 14,000 scanned articles in it, from 1870-1920. 256GB isn’t an excessive amount of storage for serious book collections.

Vikarti Anatra (profile) says:

Re: Re: Re:3 This is the reason why I own tens of thousan

Because the great majority of books for adults are text only, or at least very nearly so.

Well, I guess that that’s books are mainly targeted at children (their ebooks are rather large PDFs, with a lot of colored and specially formatted text and pictures. They sometimes have EPUB3 versions but they have almost same size as their PDFs).

Anonymous Coward says:

Re: This is the reason why I own tens of thousands of ebooks

"…I have amassed a collection …"

I appreciate the sentiments, but find your scale a wee bit too tiny. My collection of Heavy Metal issues is about 40 MB all by itself. Comparably, our cases remind me of the great dane owner who saw his neighbor walking a dachshund and remarked, "nice starter dog."

Accomplishment of freedom from the pay-per-use model requires many terabytes of storage capacity even at the level of private, individual collections. At a skosh under 8 TB total. I feel like a piker compared to some of my pro-true-ownership brethren.

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Anonymous Coward says:

Libraries as an end to the anti-piracy conspiracy?

  • Libraries can legally lend their purchased content.
  • "Content", even for a library, includes not just printed works but also electronic.
  • Anyone can start their own library.

Therefore, I conclude that I can share all of the movies, music and books I’ve purchased for free on the internet if I call myself a "library". I would need to make sure I only "lend" my copies to one person at a time and for a limited time, the latter just to make sure access to my copies is provided to as many people as possible.

Is there anything the Copyright Militia can do about this? Other than tie me up in an expensive court case that eventually ends legally in my favor but economically not in my favor, I mean?

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That One Guy (profile) says:

As a number of people have pointed out before if the concept of libraries was not already ingrained in society they never would have gotten off the ground.

‘You buy a book once and then anyone can borrow it without having to pay’ is an idea that would have been sued into oblivion were it presented today by publishers and authors terrified about all those ‘lost sales’.

Where things get bad is with the increasing shift to ebooks, because in those publishers seem to see a way to if not wipe libraries out then drastically reduce their ability to provide free and easy sources of books by adding in all sorts of limits and extra payments, to the point that the library ceases to be a place to borrow books but one to license them, where neither the library or it’s patrons ever own the book in question.

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Anonymous Coward says:

No mention of DRM?

The National Emergency Library only works for people that are willing to install DRM malware. It’s worth exploring why a library would do that to people. I don’t think it’s because they love DRM; the laws should be stronger to ensure public libraries don’t feel pressured to abuse their clients to avoid lawsuits.

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Anonymous Coward says:

Re: No mention of DRM?

The National Emergency Library only works for people that are willing to install DRM malware. It’s worth exploring why a library would do that to people. I don’t think it’s because they love DRM; the laws should be stronger to ensure public libraries don’t feel pressured to abuse their clients to avoid lawsuits.

Remember the whole idea of a library from a legal standpoint is that they loan books out, with an expectation that the books will be returned. Of course there’s nothing that prevents a determined borrower from copying every last page of the book before returning it, and with the advancement of computers it’s only gotten easier to do so, but that fact doesn’t change the legal framework of libraries. Their exemption to copyright is based on lending and thus lending is the only thing they can do if they want to rely on their exemption.

Of course, nothing can really be "loaned" in a digital sense. The nature of digital data means copies are being made, and destroyed, constantly. The closest you can get to it is attempting to ensure that the "borrower" looses access to the content when certain conditions are met or a time period lapses. That is the entire purpose of DRM in a nutshell. Of course DRM always fails at this purpose for reasons we won’t go into here, but suffice to say the inclusion of DRM is meant to try and fulfill the "return" requirement of lending so the library can utilize it’s copyright exemption if it is challenged in court. Instead of being seen as a distributor of free unlimited permanent downloads.

TL;DR: The reason the DRM is there is due to the library not being in compliance with their legal requirements from a natural order standpoint, while still trying to fulfill their intended purpose to the public.

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Scary Devil Monastery (profile) says:

Re: Re:

"Much better written. The drivel peddled here."

OH, hey, Baghdad Bob felt inclined to lend us all a link to one of the official Copyright Alliance webpages, just so we could all read something far more entertaining than mere fact and logic. Thanks. Just what we needed.

I’m sure if I ever feel the need to read a few maximalist diatribes as to why artificial scarcity is the best thing since sliced bread and should be rammed down the public’s throat whenever possible, this’ll be my second stop.

The first stop still being Frederic Bastiat’s lampoon about the "Candlemaker’s guild" trying to restrict the citizenry from access to the sun.

Toom1275 (profile) says:

Re: Re: Re:

A wordier version of what I said.

On one side, we got Mike’s pro-copyright article, lamenting how the Copyright Office is undermining the purpose copyright by denying libraries’ proper place.

On the other side we got a troll that can’t write basic sentences linking publishing cartel bullshit and their sock pretending that steaming pile is the "informative discussion."

nasch (profile) says:


It seems to me that this analysis is ignoring the number of copies made. If I’m not mistaken, this library started loaning out an unlimited number of copies of e-books.

A digitized copy replaces the legitimately acquired copy

A copy, yes, but dozens, hundreds, thousands of copies? I’m no copyright fan, but it seems like copyright holders might have a legitimate complaint here. If libraries were purchasing paper books, making hundreds of copies of them, and then loaning those out, would that be ok too? If so, then I’m wrong and carry on. If not, what makes it different when it’s digital? Legally different I mean, obviously it’s technically and economically different.

Celyxise (profile) says:

Re: Copies

If I remember correctly, the idea was what since people cannot visit libraries during the pandemic, that there are thousands of copies currently unable to be lent, so this would be the replacement. I doubt that argument satisfies anyone though.

However this entire conversation seems to hang on the argument that each time a book is lent, that a sale is lost. That’s a messed up way of thinking in my opinion.

nasch (profile) says:

Re: Re: Copies

If I remember correctly, the idea was what since people cannot visit libraries during the pandemic, that there are thousands of copies currently unable to be lent, so this would be the replacement.

That would work if they are actually accounting for electronic copies compared to paper copies, but I doubt that’s happening. I’m skeptical of an argument that there are "a bunch" of paper copies and the library is loaning out also "a bunch" – but possibly a much larger number – of digital copies, and since they’re both large numbers there’s no copyright infringement.

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