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The Internet Archive’s Literary Civil War

One set of red and one set of blue fanned out paper sheets facing each other conflict concept

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Mar 31, 2023 9:00 AM

The Internet Archive’s Literary Civil War

The beloved online athenaeum just lost a big court case. Librarians fear it’ll make ebooks less accessible. So why are some writers cheering?

A lesson I learned early in life: never piss off a librarian. Apparently District Court Judge John G. Koetl skipped out on a formative traumatic-shushing experience, because his recent ruling against the Internet Archive, a beloved digital library nonprofit, has riled up the biblio-archivist community.

Some brief background: During the early days of Covid lockdowns, the Internet Archive launched a program called the National Emergency Library, or NEL. Since library closures had ripped millions upon millions of books out of circulation, the Internet Archive wanted to help people stuck at home access information. The NEL was part of a larger project called the Open Libraries Initiative, where the Internet Archive scans physical copies of library books and lets people digitally check them out.

It was always meant to be temporary, but the NEL shut down early after some of the largest publishing houses banded together to sue for copyright infringement. This week, Koetl sided with the publishers. He didn’t buy the Internet Archive’s argument that its digitization project fell under the Fair Use doctrine. Sample line: “There is nothing transformative about IA’s copying and unauthorized lending of the Works in Suit.” The Internet Archive plans to appeal.

As a general rule, I support the Internet Archive’s work. (The Wayback Machine deserves all the praise it gets, and then some.) As another general rule, though, I support writers’ efforts to protect their intellectual property and make money. Even prior to the lawsuit, some writers, like Colson Whitehead, criticized the NEL for cutting into authors’ incomes. Plus, professional groups like the US National Writers Union and the Authors Guild, among others, have applauded Koetl’s decision as a win for creative types.

I wasn’t sure how to feel about this whole kerfuffle. Making it easier and less costly for libraries to lend out ebooks seemed obviously good. But taking money from writers seemed obviously bad. This fight, over the fairly niche issue of ebook copyrights, hits upon larger, ongoing conversations about paying artists, what it means to own digital works, and corporate price gouging.

I called a few people on both sides of the issue to learn more about their positions—and ended up on the phone for hours, feeling for all the world like a kid listening to her beloved but divorcing parents bitterly complaining about each other.

One important thing to understand about this conflict is that ebooks and physical books are not sold to libraries in the same way. Unlike physical books, ebooks are licensed out, so instead of owning them, libraries are essentially renting them. Each publisher has its own way of setting up licensing. Some are for fixed terms (say, two years) while others need to be renewed based on how many times they are lent out (say, every 26 times a book is borrowed). It can cost libraries exponentially more to keep an ebook in circulation versus a hard copy. Understandably, many librarians find these terms exploitative. Academic librarian Caroline Ball, who is based in the UK, tells me she had a business textbook that would’ve cost £16,000 ($19,800) for a single year.

Ball sees the recent ruling as a disaster for library access, since it sides with the publishing companies controlling these onerous licensing agreements. “It’s reprehensible,” she says.

Author and independent journalist Edward Hasbrouck, who volunteers with the National Writers Union, does not find the ruling reprehensible. In fact, he’s elated. He says that the judge made the right call, and that the San Francisco–based Internet Archive has a “typical Silicon Valley attitude of laws-be-damned.” Hasbrouck finds it offensive to blame the ruling for bad ebook licensing arrangements. “The Internet Archive tried to force their own de facto licensing terms—free—onto us,” he says. He feels especially bad for older writers with big back catalogs, because he says they’re often the most impacted by losing ebook licensing deals.

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Authors Guild CEO Mary Rasenberger also sees the ruling as a victory for writers. And she, too, stresses the importance of ebook licensing as a source of income. I asked Rasenberger whether more people borrowing library books online would really make a substantial dent in how much writers take home. She says it would: “It's just extraordinary, with the rise of library ebook lending, how much income to the publishers and the authors has declined.” (Rasenberger says she’s seen data from a publisher that proves this but did not share it with WIRED, so we can’t verify its accuracy.)

Juliya Ziskina, a policy fellow at the nonprofit Library Futures, strenuously disagrees with this argument. “It’s a misplaced accusation to say that libraries are costing authors money,” she says. “That's kind of like saying every time you drink tap water, a bottled water company is losing money.”

Ziskina thinks it’s a mistake to see this as a dustup between libraries and writers. Instead, she wants to reframe it as an opportunity to examine how publishers treat writers. “Publishers are making record profits,” she says; she thinks underpaid writers might want to ask their publishers for more money instead of grumbling about libraries stealing sales.

But hostility remains. When I email Hasbrouck to ask what his exact role at the NWU is, his response makes it clear that tensions are still high. “All of my work as an NWU officer has been as an unpaid member volunteer, not paid staff. Contrary to the bizarre slurs from the Internet Archive about our ‘highly-priced lobbyists,’ the NWU has no paid lobbyists. We advocate for ourselves and our comrades as working writers,” he wrote.

Rasenberger says that the entire “author community” has been against the Open Libraries Initiative, except for one group. “The one exception is the Authors Alliance. The one thing you should know about them is that their whole mission is to make books readily available, so they don’t care about copyright,” she says. “They’re mainly academics whose books never make any money.” Damn! A lesson I’m learning in adulthood: never piss off an author’s advocacy group executive.

David Hansen, executive director of the Authors Alliance, says the organization has a number of copyright law scholars on its board of directors, advisory board, and amongst its founding members and that these people “care deeply about copyright and want to see the law improved.”

Over a thousand writers signed a recent letter in support of digital libraries that specifically critiques the lawsuit against the Internet Archive, so I don’t think it’s accurate to say that writers as a group fall on one side or another. But I should also note that several writers I asked about this—including a few who signed that letter—expressed ambivalence about the situation and did not want to go on the record to talk about it. Nobody wants to take sides when Mom and Dad are fighting! Coming out against libraries making books more accessible looks miserly, but so does protesting against authors getting paid what they deserve.

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It’s too soon to say if the Internet Archive’s appeal will succeed. Ziskina believes this recent legal battle is simply the most recent front of a much-longer war—one librarians are winning. “Publishers have been fighting with libraries on every single user-oriented innovation since microfilm in the 1890s,” she says. But she’s cautiously hopeful about the next round of the fight. “Based on past precedents, the Second Circuit has generally ruled in favor of libraries.” The anti-IA side is equally optimistic. Hasbrouck’s exact words? “We hope and expect they will lose.”

Updated 03/31/2021, 8:20 pm EST: A comment from David Hansen, executive director of the Authors Alliance has been added.

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All this Internet Archive hubbub made me rifle through our archives to see how WIRED covered its early years. I found “The Great Library of Amazonia,” a fascinating 2003 Gary Wolf article on Amazon’s efforts to archive every book. Many of the copyright issues it triggered remain, uh, extremely relevant:

The copyrights to these titles are spread among countless owners. How was it possible to create a publicly accessible database from material whose ownership is so tangled? Amazon's solution is audacious: The company simply denies it has built an electronic library at all. "This is not an ebook project!" Manber says. And in a sense he is right. The archive is intentionally crippled. A search brings back not text, but pictures — pictures of pages. You can find the page that responds to your query, read it on your screen, and browse a few pages backward and forward. But you cannot download, copy, or read the book from beginning to end. There is no way to link directly to any page of a book. If you want to read an extensive excerpt, you must turn to the physical volume — which, of course, you can conveniently purchase from Amazon. Users will be asked to give their credit card number before looking at pages in the archive, and they won't be able to view more than a few thousand pages per month, or more than 20 percent of any single book.

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Manber has built a powerful, even mind-boggling tool, then added powerful constraints. "The point is to help users find a book," says Manber, "not to make a new source of information."

Bezos is vehement on this point. He has sold publishers on the idea that digitizing hundreds of thousands of copyright books won't undermine the conventional bookselling business. "It is critical that this be understood as a way to get publishers and authors in contact with customers," he says in an interview at Amazon's Seattle headquarters. "We're perfectly aligned with these folks. Our goal is to sell more books!"

One wonders how long it took after this piece was published before publishers started questioning whether “perfectly aligned” really described their relationship with Amazon …

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Earlier this week, an open letter signed by “tech luminaries, renowned scientists, and Elon Musk” called for a pause on any AI experiments more powerful than Chat-GPT.

James asks a succinct question about said letter: “Is it dumb?”

Nah. Not dumb. When you see someone making a potentially costly mistake—a driver turning the wrong way on a highway, a jogger dropping their keys on the running trail, a coworker about to microwave an egg salad sandwich—you try to stop them, right? I think many of the signatories are simply trying to do the right thing, even if it’s futile.

Other signatories, though … I hate to use the term “virtue-signaling,” because even just writing it out makes me feel like I’m about to get a phone call from the booker from Real Time With Bill Maher asking me to participate in a roundtable about cancel culture … But c’mon. For some of these people, this is just an ass-covering measure in case the AI does go full evil; they’re not actually going to stop working on it themselves.

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You can submit questions tomail@wired.com. Write ASK LEVY in the subject line.

The Internet Archives Literary Civil War

In the US state of Idaho, the Republican Party is attempting to create a new crime category: “abortion trafficking.” A bill introduced this week would make helping a minor obtain an abortion without parental knowledge a felony. I didn’t think anything would make me more depressed this week than typing “virtue-signaling” a few minutes ago, but here we are.

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I’m too scared to watch the new Amazon Prime thriller Swarm, but I did enjoy my colleague Jason Parham’s review.

Another thing that scares me: Alzheimer’s disease. So I’ll be paying close attention to this new startup’s attempts to detect early signs of Alzheimer’s through analyzing speech.

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Think having one landlord sucks? Try having hundreds. That’s the new reality for people renting homes owned through fractional investments.

And finally: AI chabot battle royale.

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Kate Knibbs is a senior writer at WIRED, covering culture. She was previously a writer at The Ringer and Gizmodo.
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