If you’re unfamiliar with the Internet Archive lawsuit, here are some quick links:
2020 Vox article
2023 court document (I highly recommend this one)
One and two articles from the appeals stage
2024 appeals court document 

I work in the rights department of a publishing company, where two of my responsibilities include registering books for copyright and fielding requests for accessible formats from disability services and disabled readers. Both copyright protection and text accessibility matter deeply to me, and I’m frustrated by the lack of nuance I see about this lawsuit online. So, here are my hot takes (and by hot takes, I mean long-winded research):

Caveat: I have only been in this career for three years, and there’s a lot I am still learning. These are my personal thoughts, not those of my workplace.

Book piracy negatively impacts authors

While authors do receive an advance, their long-term payment comes from royalties, including higher percentages for ebook and subsidiary sales. This structure is similar to television writers receiving residuals when episodes aired, a practice which severely hurt their careers when it was changed due to streaming. 

Similarly, pirating books en masse means depriving authors of pay for their work, impacting both their ability to create and the fate of future books. This essay by Maggie Stiefvater details how piracy affects future sales deals, for example.

One misconception is that the Internet Archive’s online repository is doing identical work to libraries. However, libraries’ free books provide financial support to authors, as do their ebooks licensed through aggregators like Overdrive. The IA’s 2020 National Emergency Library allowed thousands of commercially available works to be borrowed online simultaneously, and while the lawsuit has since grown into a critique of the IA’s current practices, neither their NEL nor their current structure pays authors.

I agree that author royalties are certainly flawed, and I would love to see systemic changes to make earning money more feasible, but sharing authors’ works for free without consent is not the solution. 

What about books that aren’t commercially available?

When a book goes out of print, it can become challenging to find, often disappearing from bookstores and even libraries (although, I’m sure librarians would be thrilled to help you order an obscure title!). Older books also may not have had an ebook version available for licensing. Yet, these books remain protected by copyright, even as some titles become “orphan works,” and others have rights holders that are challenging to track down. Obscure OP books still have beneficiaries that would be impacted by piracy, but their status makes them tricky to read or revive, and that’s where CDL comes into play.

What’s CDL?

CDL (“controlled digital lending”) is the practice of scanning a book and lending the digital scan(s) to patrons in lieu of physical copies on an owned-to-loaned ratio. This link provides in-depth literature on the implementation of CDL. Publishers generally dislike CDL, both because it relies on copying and because it swerves away from licensing agreements. That said, this paper discusses how libraries tend to focus on “low-risk” books for these projects, like out-of-print or older titles without available ebooks. This work ramped up amid the pandemic, when students needed books for online classes.

Importantly, though, the IA’s “CDL” differs from libraries because it does not maintain the same territory restrictions and its partner program means it does not limit its lending to copies owned (and their NEL was simply not CDL).

This topic is not my specialty, but libraries are spending immense thought on what it might mean to create greater legal digital accessibility. It’s worth noting that the judge ruled that the IA only needed to remove books available in ebook format elsewhere, because this focuses on the actual harm instead of targeting all acts of digitization. I would prefer to see a version of CDL that is more collaborative with rights holders/authors, such as the CMO solution proposed here (pages 5 & 6). But this is an ongoing conversation, and the IA’s rash choices risk jeopardizing its future.

What drives piracy?

Piracy tends to jump when there’s a flaw in the system that makes legally accessing media increasingly inconvenient, such as the enumeration of streaming services. Instead of simply condemning piracy, I believe it’s useful to examine the systemic flaws exacerbating it—for example, to combat musical bootlegs, many have suggested that Broadway shows provide a streaming version online after a show closes to boost sales and generate mass public interest. I think these conversations are worth having, but I don’t think they really apply to cases where ebooks are available for free through libraries. 

What about copyright terms? What about Mickey Mouse?

Look, I worry that when people think about copyright laws, they are just thinking about the Mickey Mouse situation, which was obviously frustrating. And I agree that copyright terms are extremely, perhaps unreasonably, long. But I don’t think the solution is for copyright to expire during an author’s lifetime, as some suggest—I think it’s important to give authors the choice for how they’d like to share their work. And that brings me to my final point:

Supporting artists

Not all authors are anti-piracy, but I think they should have the choice in how their books are accessed. People seem to believe that the way to a less capitalistic society is for writers to start releasing their works for free. But we don’t yet live in a world where everyone can forgo being paid, and supporting an already struggling profession is what allows them to continue to make art. When people talk about implementing support systems like universal income or other incentives, they don’t suggest that the starting point is for workers to simply reject their paycheck. Why is this the expectation for writers? 

Also, authors are not the only people affected. I saw immense online support for the HarperCollins strike, where workers demanded better pay, but book sales play a crucial role in where that pay actually comes from. Publishing companies are not walking corporations; they are comprised of people trying to pay their bills. 

In conclusion

Issues like paying artists for their labor, increasing accessibility, and empowering libraries are all nuanced ideas that can exist simultaneously, and simply championing the Internet Archive unreservedly doesn’t allow for the conversation that’s needed to bring about change.

Hannah McNulty

Hannah McNulty graduated from Calvin in 2021 and stuck around Grand Rapids, against all odds. She has spent her last few years singing in choir, teaching herself to love reading again, and trying to learn every fiber art simultaneously. She currently works at Eerdmans Publishing, where you can find her burying her nose in old paperwork and forcing anyone within earshot to listen to her bad puns.