The Internet Archive and the publishers Hachette, HarperCollins, John Wiley & Sons, and Penguin Random House have filed motions for summary judgment in the litigation surrounding the Internet Archive’s National Emergency Library and Open Library.
This case began when the four major publishers listed filed a complaint against the Internet Archive for the short-lived National Emergency Library (NEL). But in addition to challenging the NEL specifically, this case challenges the legality of controlled digital lending (CDL) more broadly.
With controlled digital lending, a library scans the pages of a book and then makes the images from that scan available to readers on a one-to-one, own-to-loan basis. The physical analog to the scanned version is stored by the library and made inaccessible to readers who can instead access the scanned version. Just like a traditional library, only as many copies as are available on the “shelf” may be checked out and read at any one time.
Considerable opposition has been raised against the practice of controlled digital lending. Several notable authors and authors’ groups have come out against both the Internet Archive in this specific case and the practice more generally. Yet their views are not universal among authors affected by controlled digital lending.
As authors who have published several books for a mostly academic audience that can be found in the Open Library or its catalog, we do not share some other authors’ opposition to Controlled Digital Lending. Brink Lindsey is the author of The Age of Abundance, Against the Dead Hand, and Human Capitalism. Geoffrey Kabaservice is the author of Rule and Ruin and The Guardians. Joshua McCabe is the author of The Fiscalization of Social Policy. Steven Teles is the author of The Rise of the Conservative Legal Movement, and Whose Welfare?
The Captured Economy was co-authored by Brink Lindsey and Steven Teles, Antidumping Exposed was co-authored by Brink Lindsey and Daniel Ikenson, Prison Break was co-authored by David Dagan and Steven Teles, and Never Trump was co-authored by Steven Teles and Niskanen Center senior fellow Robert Saldin.
All editions of our books available to borrow from the Open Library were at one time either purchased directly or purchased and then donated, in just the same way libraries across the world and throughout history have developed their collections. The same will be true for those cataloged but not yet available for lending, or any other books of ours made available using Controlled Digital Lending. And, as is the case with all other libraries, only one copy at a time will be available for check-out. We live in a time of high inflation, supply chain constraints, and other forms of scarcity. The Niskanen Center is part of the push for an “abundance agenda,” and controlled digital lending is part of that.
As the authors of technical academic books on social science, economics, and history, we appreciate when our works are made widely available so others can read, learn from, and enjoy them. These works are generally available in academic libraries, but this is not always true of libraries available to the general public. It is gratifying when these books end up in libraries such as the Open Library, and we hope this case will be resolved so more institutions can engage in CDL. We hope an outcome affirming the legality of controlled digital lending under the Copyright Act will make it so that more libraries further expand the reach of our work within the confines of the current copyright system.