Information craves freedom, a notion that was recognized in 1984 and foreshadowed the emergence of the internet. The digital reproduction of data and words comes at no cost, leading to an overwhelming abundance of information. However, information also yearns for value. The right information, at the right time, can have life-saving implications, bring about prosperity, or even overthrow a government. Producing good information requires time, effort, and financial investment.
In the midst of a battle between free and expensive information, Brewster Kahle, the founder of the Internet Archive, attempted to aid students, researchers, and general readers during the early days of the Covid pandemic. He launched the National Emergency Library, a vast collection of digital books that were largely inaccessible elsewhere, making access to these resources effortless. Unfortunately, this charitable initiative backfired as four publishers accused the archive of “willful mass copyright infringement” and sued. Ultimately, the publishers emerged victorious, with a recent announcement stating that they had reached an agreement with the archive to remove all their copyrighted books from the site.
The archive responded with caution, acknowledging that changes to its lending program were expected, but the full extent of these changes remained unknown. Additionally, an undisclosed financial payment would be required if the archive were to lose the appeal. The case has stirred up bitterness between the parties involved, and this agreement, pending court approval, is likely to intensify the animosity. Each side accuses the other of acting in bad faith, labeling their opponents as well-funded extremists who refuse to listen to reason and aim to destroy culture.
Caught in the crossfire are writers, whose primary responsibility is to create the books that contain valuable information. Despite the significant role they play, writers often find themselves powerless, a familiar predicament. The emotions surrounding this case run high, with six thousand writers supporting the lawsuit, while a thousand others vehemently denounce it. The Romance Writers of America and the Western Writers of America have joined forces in favor of the publishers, whereas the Authors Alliance, a group of 2,300 academics dedicated to sharing their creations for the benefit of the public, submitted a brief in support of the archive.
The battle between free and expensive information extends far beyond this specific case, permeating all forms of media and entertainment. Neither side has a permanent upper hand, even if it seems that way at times. As technology visionary Stewart Brand astutely observed, “The more information is free, the more opportunities for it to be collected, refined, packaged, and made expensive. The more it is expensive, the more workarounds to make it free. It’s a paradox. Each side makes the other true.”
Universal access to knowledge has always been a dream of the early internet, and Brewster Kahle, a long-time advocate of this idea, saw an opportunity to make it a reality when the world ground to a halt during the Covid pandemic. He believed the Internet Archive could serve as a temporary bridge between readers and the books stored away in libraries and schools. However, his plan did not come to fruition as the emergency library was shut down in June 2020.
Nevertheless, Mr. Kahle held onto a glimmer of hope when the Board of Supervisors of San Francisco passed a resolution in support of digital libraries and the Internet Archive. Although symbolic in nature, the resolution conveyed the very message that Mr. Kahle had been struggling to convey, especially in court. It emphasized the importance of preserving the essential rights of libraries to own, preserve, and lend both digital and print books.
Librarians are the custodians of knowledge. Mr. Kahle, despite his tech background, yearns for a future that resembles the past to some extent. He believes that if he purchases an e-book, he should truly own it, rather than merely renting it from media companies that have transformed into tentacled entities snatching back books from readers’ grasp.
It is crucial to understand the background of the case. Physical books, once sold, are subject to the “first sale” provision of copyright law, which means authors and publishers have no control over the fate of the books once they are in the hands of readers. The books can be resold and borrowed an unlimited number of times, allowing information to flow freely throughout society. However, e-books function under different rules. They cannot be resold or given away, and libraries must obtain licenses from copyright holders to lend them. These licenses often come with restrictions on the number of reads or time periods. Essentially, libraries do not own e-books; they only possess temporary access to them.
The Internet Archive’s lending program, which was established long before the pandemic, involved scanning physical books and offering them to readers through its Open Library platform, a practice known as controlled digital lending. Each scanned book could be borrowed by one reader at a time, and if the library or one of its partners had multiple copies, multiple readers could borrow them simultaneously. The archive cited fair use and the first-sale doctrine to justify its creation of e-books. However, U.S. District Court Judge John G. Koeltl dismissed these justifications, emphasizing the harm caused to publishers’ financial interests outweighed any potential benefits for research and cultural participation.
The Internet Archive’s loss in court comes at a time when concerns are growing regarding the ability of tech, entertainment, and media companies to uphold the public’s access to a diverse range of culture. For instance, Warner Bros. Discovery faced backlash when it attempted to scale back its Turner Classic Movies cable channel, which is renowned for its collection of cinematic history and art.
While new technology allows for the on-demand delivery of culture, not all forms of culture are equally accessible. In the early days of Netflix, customers had around 100,000 DVDs to choose from. However, streaming services have drastically reduced the number of available titles, with approximately 6,600 U.S. titles now on offer. Most of these titles are contemporary, and only a handful were produced between 1940 and 1970.
Libraries have traditionally served as sanctuaries for culture that may not have been financially viable, or that was lost, buried, or fell out of favor. Sadly, this fundamental aspect of libraries is now at risk. Jason Schultz, director of New York University’s Technology Law & Policy Clinic, warns that the permanence of library collections may be a thing of the past. If platforms choose not to offer e-books or publishers decide to remove them from shelves, readers will suffer. This situation is reminiscent of songs being blanked out on Spotify due to expired licenses or movies and television shows cycling off streaming platforms like Netflix or Amazon.
The publishers who emerged victorious—HarperCollins, Penguin Random House, Hachette, and John Wiley & Sons—through the Association of American Publishers declined to comment. In their reflections on the case, the publishers’ group simply stated that they were protecting the rights of writers, whom they view as heroes.
The publishers’ association claimed that the archive showed no remorse and refused to engage in negotiations. They accused the archive of accelerating its activities after being sued. Mr. Kahle, however, denied these claims, asserting that the publishers never approached the archive and instead chose to take legal action.
In the midst of this battle between free and expensive information, writers find themselves in a precarious position. While their role in producing books that contain valuable information is significant, they often lack power and influence. The emotional impact of this case is evident, with six thousand writers signing a petition in support of the lawsuit, while a thousand others denounce it. The Romance Writers of America and the Western Writers of America have aligned themselves with the publishers, whereas the Authors Alliance, a group of 2,300 academics dedicated to sharing their creations for the public good, have sided with the archive.
This struggle between free and expensive information is a recurring theme across various types of media and entertainment. Neither side can claim absolute dominance, even during moments when it may seem that way. Stewart Brand’s astute observation holds true: “The more information is free, the more opportunities there are for it to be collected, refined, packaged, and made expensive. The more it is expensive, the more workarounds are created to make it free. It’s a paradox. Each side reinforces the other.”
Brewster Kahle’s vision of universal access to knowledge has been a longstanding goal of the early internet. When the world came to a standstill in March 2020 due to the Covid pandemic, he saw an opportunity to bring this vision to life. He believed that the Internet Archive could act as a temporary bridge between readers and the books that were locked away in libraries and schools. Unfortunately, his plan did not succeed, and three years later, he remains frustrated and angry. However, a glimmer of hope emerged when the Board of Supervisors of San Francisco passed a resolution supporting digital libraries and the Internet Archive.
In conclusion, the battle between free and expensive information has wide-ranging implications for our society. The outcome of this specific case between the Internet Archive and publishers will have lasting consequences for access to knowledge and the role of libraries. It is a complex and nuanced debate that continues to unfold, with writers caught in the crossfire. Ultimately, the struggle between free and expensive information is a paradox that shapes the future of information dissemination in our increasingly digitized world.
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