For nearly twenty years, I’ve used Google Docs for most of my writing: class notes, personal notes, a novel in progress, research, activism, and my day job. It’s become an essential piece of infrastructure for me, an archive of my life and evolving interests.

In order to sign up for Google Drive, I presumably had to read a Terms of Service agreement provided to me by Google. Every once in a while I’ll get an email telling me that the Terms of Service have changed, which I almost always immediately delete without reading. Even if I tried to read what’s been changed, I’d be faced with a 4,500 word document that contains approximately 43 outbound URLs to Terms of Service for other Google entities, which links me out to others indefinitely, an infinity of terms. Even if I could read the terms and didn’t like them, I’d still be stuck with Google Docs; eventually someone at work would ask me to review a document.

We sign these contracts constantly, a kind of digital decision fatigue that’s overlooked in most conversations about tech law and policy. Whether or not you believe that participation in digital life requires a contract at all, clickthrough and wraparound contracts that contain thousands of words, links, and subsections are disempowering to the public and potentially disastrous when enforced. 

Want to reserve a table at your favorite restaurant? You’re now subject to OpenTable’s arbitration clause. Texting your friends? You’ve granted WhatsApp a worldwide license to reproduce and create derivative works from everything you send or receive. I couldn’t even sign my own divorce paperwork without consenting to Docusign using my agreement in AI training data.

The contracts attached to most digital services are called “contracts of adhesion,” “take it or leave it” contracts where the terms are set by a stronger party and the only way to walk away is if you can choose another service, which you generally cannot in a world where a handful of companies control the majority of commerce and cloud services on the internet. 

Clickthrough contracts of adhesion live in a gray regulatory area, but even though they function as a “mutant form of contract law,” they are generally considered enforceable. Last year, Cathy Gellis wrote on this blog about a particularly egregious case concerning the arbitration clause in a Disney+ agreement. After a woman died of a severe food allergy at one of the parks, Disney argued that they could not sue the company because her husband had signed up for a free trial of Disney+ several years prior.

Lots of scholars point out that laws and constitutions act like contracts of adhesion in certain ways – I live in North Carolina and I vehemently oppose recent transphobic House bills. However, I can, at least in theory, vote those motherfuckers out. I cannot vote out Amazon Web Services or Zoom, which I need for my work. Unlike bad legislation, I can’t organize my neighbors to throw them out either.

Binding contractual agreements for every single digital service has become a tool companies exploit at the expense of consumer rights that makes us even less safe on the internet, and it’s pure enshittification. Even if negotiability is impractical, contracts should be short, human readable, and consumer friendly. Using the internet shouldn’t force me to waive my right to a class action lawsuit, my ability to own a book, or to my own palm print.

How are we supposed to build democracy as an informed electorate when we have, in the words of Brendan Ballou, “lost access to our own justice system” through the nearly universal forced arbitration provisions in terms of service? How am I supposed to participate fully in a market economy when basically every contract I sign online creates an “accountability sink” where no one is responsible for a company’s failings except the system itself? How can I learn to exercise informed consent when I’m constantly clicking through terms of service that I both can’t read or actually consent to? How can I participate in society if everyone is using a tool but I object to its terms of use?

Combatting terms of service and licensing abuses takes a proactive and practical approach. Under the Biden administration, the FTC began to regulate these contracts, but now the regulatory locus has shifted back to the consumer. Even though the government is not coming to save us, we don’t have to live out the rest of our lives as digital peons in a rentier economy.

My organization Library Futures has launched a program to provide counsel in contract negotiation and terms setting for libraries – a DIY contract center in the public interest. No other institution is buying digital content at the same rate as libraries, where one private equity owned digital vendor (Overdrive) provides almost 97% of all ebooks to public library systems. Every single one of those contracts, terms of service agreements, and licensing deals have to run through a process at either the local or or the institutional level. This often happens without a full review of terms and no access to a lawyer. Publishers and library vendors can’t afford to lose this business; through a flex in monopsony power that builds coalitions on both the institutional and collective level, we believe that libraries can force major publishers to the table, rewrite the digital terms of service, take back their collections from the control of large corporations, and reject language that’s unfavorable to the public.

Libraries have always been opposed to onerous terms of service, but like most of us, they’ve felt powerless in the face of corporate overreach. We’re not the first to fight the power in libraryland – the seminal privacy case Doe v Gonzales concerned whether librarians had to violate their own privacy policy and turn over computer records to the government. In 2020, librarians staged a boycott of Macmillan over their shifting and consumer unfriendly digital terms – and won.

In identifying a locus of power with significant buying power and a mandate to serve the public, we’re fighting contractual overreach one library at a time, publishing our results and providing organized, compassionate guidance so institutions and individuals can take back their right to transparency, a fair trial, privacy, and their right to own the content they buy. We’ve been signing away our rights one click at a time at the expense of democracy, civil rights, informed consent, and the well being of a digital generation. If we want to take them back, libraries are the most powerful place we can start.

Jennie Rose Halperin is the Executive Director of Library Futures

As a child, nothing warmed me more than my mother’s “Three C’s Soup”: Cabbage, Carrot, Carraway from Jane Brody’s Good Food Book: Living the High Carbohydrate Way (published in 1980 and still in print, no ebook version has yet been licensed). And when my mother died in late fall 2018, there was nothing I wanted to cook more, but her copy had gone missing. 

I could have called the library and asked them to read me the recipe, or to scan it and to send it to me, but my library had a later print edition of the book. I could have bought a used copy of the 1980 edition, which I eventually did, but I wanted to cook it that day. So instead, I went to Open Library, the Internet Archive’s Controlled Digital Lending program, and borrowed the book for an hour, returning it when the soup was finished. In the words of my mother’s favorite literary character, the Mock Turtle: It was beautiful soup. 

About a year and a half later, the Internet Archive was sued for providing books in this manner to the public. The suit was triggered by a short-lived, well meaning program that made books available to students during a dark part of the pandemic by lifting certain restrictions on how many people at a time could borrow a given library title. That lawsuit just came to a judgment, ordering the Archive to take down a part of their collection and striking a blow to Controlled Digital Lending more generally, though the Archive will appeal.

To be clear: what the Internet Archive is doing is traditional library lending in a digital form, and frankly not radical – I can just get access to the materials I want much more quickly through the Archive, but I must also return them much more quickly. There is no situation in which acquiring a recipe from an obsolete edition of Brody’s first cookbook with no ebook equivalent would hurt her royalties. Libraries have traditionally bought one copy of a book and then lent it, much like they do with CDL, which maintains an “owned to loaned” ratio through sequestering materials. 

While big publishers would have you believe that people are flocking to the Internet Archive to borrow and read these scans for free rather than relying on the “thriving ebook licensing market for libraries,” they ignore a few crucial facts to advance a bad faith argument about market harm: the average time readers spend with an Internet Archive scan is under 30 minutes. People seem to be using these materials as intended: as reference, grabbing just the bit of information they need.

If someone wants to download and read an ebook outside of a streaming service or licensed copy, they are not going to use a scanned, DRM-protected epub that they can borrow from the Internet Archive for an hour. Authors, publishers, and musicians know this, and yet content rightsholders continue to litigate a nonprofit library at great expense to themselves and their authors. As the New York Times reports, even authors who were once critical of the Archive’s efforts have removed their initial statements. Author Malcolm Harris recently tweeted, “The Internet Archive was an invaluable resource when I was writing PALO ALTO and it pisses me off that Hachette sued in the name of their authors.” 

There are, of course, very real threats to authors and publishers: large download sites, censorship by legislators, “chokepoint” intermediaries, AI corporations gobbling up materials and selling them back to the public as new products, the general “enshittification” of platforms, the high overhead costs and venture capital ownership of streaming that has been predicted to collapse for nearly ten years, Overdrive’s monopoly in libraries, publishers’ resistance to reasonable contractual requests by authors, at-risk corporate archives, or Amazon’s stranglehold hold over the digital book and audiobook market. In pursuing this case (and a related case from the music industry), the litigants seek to distract artists from the very real conditions of labor that would start to fix a broken system but might cut into their bottom line: better contracts and a humane income, artistic independence and the freedom to publish, collaborations that inspire new creation, more control over their terms and payments, and less consolidation in the market.

Could copyright holders join together and rethink streaming and licensing in order to build a digital system that works for authors, small publishers, and artists, considering that five companies control at least 77% of the US best seller market and artists are struggling? Of course, but it wouldn’t provide the kind of surveillance of readers, data harvesting, and AI-written books that they hope will cut many authors out of the equation entirely. (Obviously no librarian wants any of the above.) Penalizing libraries providing scans of books and music largely for reference sets a precedent in a limited case that benefits no one.

Creators deserve more. As the SAG AFTRA strike has shown, large, organized communities can disrupt an entire industry by fighting for their rights. Rather than adopting a passive position against corporate overreach in the face of an digital licensing industry where one major company dominates up to 85% of the digital book market (Amazon) and another dominates up to 90% of the library lending market (Overdrive/Libby), we can come together and fight for fairer contracts, particularly when it comes to licensing rights and equitable downstream uses of work. And in my own community of librarians, we must stop infighting about whether we agree with the Archive’s position, or whether Controlled Digital Lending is legal or not. We have to work together to wrest power from the large corporations that dominate commercial publishing. The future of knowledge depends on it.

How many times have you shared a link today? How many times have you used a search engine to look for information? We use links and snippets to gain and share information so often that we don’t even think about it. It’s an essential component of the internet, so intrinsic that an internet without links simply doesn’t work. For this reason, it’s alarming that certain members of Congress are pushing “link tax” proposals, like the Journalism Competition Preservation Act (JCPA), that will monetize links in a way that changes how this essential internet infrastructure works.

The JCPA would permit news sites to band together and “negotiate” with platforms like Google and Facebook — presumably to withhold their content via link and snippets (also known as the short previews of the articles) until the platforms have paid up. Presumably, the intent of this proposal is to shift the balance of power away from big tech platforms and back to news publishers. This goal is laudable because, with the rise of Big Tech, the loss of sources for local news and information is certainly concerning. However, the JCPA is irredeemably flawed legislation that will destroy public access to information and create loopholes to alter how copyright works in our country – all while failing to achieve its stated goal of “saving” the news industry and only making problems worse for small publishers and libraries, whose goals of access to information are sometimes in conflict with large media conglomerates. 

Libraries have been one of the primary victims of the ever-expansion of copyright, since copyright law limits the ability of patrons to interact with intellectual property as they wish. The increasing scope of copyright, combined with the ease with which something falls under copyright protection, has resulted in a decrease in the availability of free information. Expansive copyright nearly always equals closed intellectual property systems, which in turn limits libraries’ ability to provide equitable access to information for all. In this case, a link tax would specifically harm libraries because links cannot be copyrighted. A link and snippet tax would be the equivalent of adding a tax to every book you check out from a library.

Research shows that access to accurate, high-quality local news is important to community health, and libraries have long-standing systems in place that increase the public’s access to information. Costly and restrictive “link taxes” like the JCPA will break these systems and penalize the public institutions that should be focused on providing high quality information resources to their communities. As trained information professionals, librarians are uniquely suited to provide access to and evaluation of the news for their communities – this proposal would take that discretion out of the hands of libraries and public institutions and place it in the hands of corporations and media conglomerates.

The relationship between libraries and publishers, including news organizations, has a long historical precedent, and libraries and publishers should work together to create a more equitable and profitable news landscape. Even so, we recognize that publishers are well within their rights to place content behind subscriptions and passwords – a route that at least 69% of media outlets have taken with great success. However, paywalls and licenses should not be not the only route for publishers moving forward, and libraries can help pave that future. A recent collaboration between Library Futures, New York’s Albany Public Library, and Hearken proved that it is indeed possible to support communities through citizen participation in the news process. In coordination with news partners and libraries, we demonstrated an increase in subscriptions and reporting power as well as built invaluable connections. With the majority of consumers accessing news through their smartphones or social media, the link to content is inviolable—as well as critical—for the publishers to reach consumers, for consumers to access the information, and for libraries to provide access to consumers. 

Small and medium publishers raised concerns about how a link tax would disproportionately hurt smaller news publishers and local news outlets who can’t afford to lose any more traffic. There are also many news sites, like ProPublica, Global Voices, The Conversation, El Diario and Al Jazeera, that purposely use Creative Commons licensing to make their articles more available to the public. These news outlets want to be readily accessible to the public and to other news outlets. As organizations and institutions committed to open access to information, libraries are invested in the future of nonprofit, openly licensed and public news sources. A link tax would jeopardize these sources, which provide crucial reporting and opinion for patrons.

American policymakers should not export bad ideas from foreign countries at the expense of publishers’ and libraries’ ability to provide high-quality news and information to American readers.They should instead carefully consider how legislation like the JCPA could open up a new loophole that allows news publishers to stop links to their materials which will only restrict access to information. For libraries and other public institutions dedicated to knowledge and education, this issue is of grave concern to our patrons, to the public, and to the continued free flow of information. 

Jennie Rose Halperin is the Executive Director of Library Futures, and Juliya Ziskina is a policy fellow with Library Futures.