It's been a few years since we last had to write about the Authors Guild -- a group that ostensibly represents authors' interests, but really acts more like a front group for publishers' interests (often in opposition to the actual interests of authors). As you may recall, the Authors Guild spent tons of the money authors gave it for dues on suing libraries. Specifically it sued and lost against Hathitrust (a collection of libraries which were scanning books to make a searchable index), and then had the same result with Google and its book scanning project. In both cases, the courts deemed such scanning and indexing as fair use -- a transformative use of the work.
Apparently, unable to comprehend that maybe it shouldn't attack libraries, the Authors Guild is at it again, threatening the Internet Archive and other libraries for daring to start a carefully designed program to lend out copies of some of their scanned works. The system, called Controlled Digital Lending was put together by a bunch of libraries and the Internet Archive to lay out a system that they believe is clearly covered by fair use, by which digital scans of certain books could be made available on loan like any other library book. The whole setup of the Controlled Digital Lending system is carefully laid out and designed to mimic traditional library lending.
One of the most fundamental and socially beneficial functions of libraries is providing broad access to information by lending books and other materials to their communities. To lend materials more effectively, libraries can apply CDL to their collections in order to fulfill their missions. CDL techniques like those described in this Statement are designed to mirror traditional library practices permitted by copyright law.
Properly implemented, CDL enables a library to circulate a digitized title in place of a physical one in a controlled manner. Under this approach, a library may only loan simultaneously the number of copies that it has legitimately acquired, usually through purchase or donation. For example, if a library owns three copies of a title and digitizes one copy, it may use CDL to circulate one digital copy and two print, or three digital copies, or two digital copies and one print; in all cases, it could only circulate the same number of copies that it owned before digitization. Essentially, CDL must maintain an “owned to loaned” ratio. Circulation in any format is controlled so that only one user can use any given copy at a time, for a limited time. Further, CDL systems generally employ appropriate technical measures to prevent users from retaining a permanent copy or distributing additional copies.
There's a joke that's made its way around copyright circles for years that if libraries didn't already exist, there's no way that copyright interests would allow them to exist today. Indeed, in the past we've seen various attacks on the institution of libraries from certain authors and publishers. And this latest attack is no different, other than cementing the fact that the Authors Guild really hates libraries:
The CDL fair use theory also relies entirely on a completely outdated and misconstrued conception of the contemporary book market, as explained in our recent blog on CDL—as though publishers were the only ones that had copyright interests that potentially could be harmed. Nowhere does the white paper mention the copyright interests of authors—who generally remain the copyright owners of their works, whether traditionally or independently published, and control most non-traditional book rights.
Authors lose potential income from every unauthorized loan made under the CDL theory. The digital reproductions and loans merely supplant the legitimate sale of ebooks, whether library editions that the library would otherwise license, or ebooks that the author or publisher would sell directly to consumers. And for those books not yet available in ebook format, CDL usurps that market before the author even has a chance.
Even if an author is not currently monetizing her book, it is still usually one of her most important assets. When authors’ works go out of print, or copyright termination rights become ripe, authors are entitled to recover any rights licensed to a publisher, and many do. The author may then repurpose the work, update it, or simply reissue it with a new publisher; and, as has become increasingly common today, authors can easily self-publish their older works to bring them back to life. Hundreds, if not thousands, of our members have done so. Stories of older books becoming popular again because of a historical event, or a new film or TV show, for instance, are not uncommon. Authors should be able to profit from that, not libraries or platforms like Open Library.
Got that? Lending books -- which the libraries have legally purchased -- means that "authors lose potential income from every unauthorized loan made under the CDL theory." Say what? Under the traditional library system, there is no authorization necessary. Libraries are free to lend out any books in their possession, which this system is designed to mimic exactly. The Authors Guild is flat out saying here that it believes any lending of library books is bad for authors which is crazy.
The Authors Guild (and the Society of Authors in the UK which has sent a similar letter) are threatening legal action over this. The Authors Guild suggests that the ReDigi rulings that said that a company can't "resell" used MP3s is the controlling case on this issue. And while I think the Redigi case was incorrectly decided on a number of factors, it is difficult to see how that is the same as the Controlled Digital Lending situation -- whereby we're talking about restricted, temporary lending from libraries, of works where the library not only retains the matching physical copy, but also makes sure that if a digital copy is loaned out, the corresponding hard copies cannot be similarly loaned out simultaneously.
If this is another legal fight by the Authors Guild against libraries, it seems highly likely to lose -- as was the case with the Hathitrust lawsuit, which cost the Authors Guild (really, its dues-paying members) big time. Though, it is amusing to see a publishing newsletter where I read about this (1) totally ignore the Hathitrust lawsuit, and (2) effectively pen a love letter to the Authors Guild including this sort of nonsense:
In the States, the Authors Guild has demonstrated more than once that it, too, has a formidable legal department in place, headed by the organization’s executive director Mary Rasenberger, a copyright attorney who has spent part of her career working with the US Copyright Office.
Publishing Perspectives readers will recall that the guild issued an effective and blistering response for Judge Hellerstein’s court at the Southern District of New York in the so-called “CockyGate” case. In that instance, an author had tried to trademark a common word to prevent others using it in titles. The guild was the leading body operating for authors in the incident and achieving a resounding outcome, effectively putting to rest anybody’s hope of capturing a word in common parlance as their own.
It can be anticipated that, should the guild’s legal office become engaged–and such language in its commentary as “We must stop this Controlled Digital Lending nonsense in its tracks” certainly makes it seem that the legal team is poised to move. It can be expected that Rasenberger will lead the effort.
I mean, sure: we wrote about the silly Cockygate story as well, but I fail to see what that has to do with questions regarding copyright, fair use and libraries. Instead, it seems that the Hathitrust case -- which directly involved all of those issues -- is more relevant. And yet, magically, that episode is completely absent from the "Publishing Perspectives" piece, which instead drones on and on about how amazing the Authors Guild and Authors Society are.
Perhaps this case will be different, but... so far it seems this effort may only be serving to upset authors. Take, for example, Aram Sinnreich, who has publicly told the Authors Guild to shove off in response to it pushing its member authors to sign a letter "against" Controlled Digital Lending:
Dear @AuthorsGuild: Thanks for the invite, but I disagree w your interpretation of #fairuse & your characterization of @internetarchive & @googlebooks as "infringers" of authors' rights.
I'm happy to have a legal/technological system that makes my books searchable & accessible! pic.twitter.com/qFniMj4AdE
— Aram Sinnreich 🗽🎶 (@aram) January 23, 2019
But, really, in the grand scheme of things, if you want to know when you've gone off the rails entirely, "threatening to sue libraries for lending books they've legally obtained" is certainly a good indicator.
Filed Under: authors, controlled digital lending, copyright, fair use, knowledge, lending books, librariesCompanies: authors guild, internet archive