Photo by Matthew Henry on Unsplash

Over the holidays you may have read about the amicus brief we submitted in the Hachette v. Internet Archive case about library controlled digital lending (CDL), which we’ve been tracking for quite some time. Our brief was one of 11 amicus briefs filed that explained to the court the broader implications of the case. Internet Archive itself has a short overview of the others already (representing 20 organizations and 298 individuals–mostly librarians and legal experts). 

I thought it would be worthwhile to highlight some of the important issues identified by these amici that did not receive much attention earlier in the lawsuit. This post is about the reader’s privacy issues raised by several amici in support of Internet Archive and CDL. Later this week we’ll have another post focused on briefs and arguments about why the district court inappropriately construed Internet Archive’s lending program as “commercial.” 

Privacy and CDL 

One aspect of library lending that’s really special is the privacy that readers are promised when they check out a book. Most states have special laws that require libraries to protect readers’ privacy, something that libraries enthusiastically embrace (e.g., see the ALA Library Bill of Rights) as a way to help foster free inquiry and learning among readers.  Unlike when you buy an ebook from Amazon–which keeps and tracks detailed reader information–dates, times, what page you spent time on, what you highlighted–libraries strive to minimize the data they keep on readers to protect their privacy. This protects readers from data breaches or other third party demands for that data. 

The brief from the Center for Democracy and Technology, Library Freedom Project, and Public Knowledge spends nearly 40 pages explaining why the court should consider reader privacy as part of its fair use calculus. Represented by Jennifer Urban and a team of students at the Samuelson Law, Technology and Public Policy Clinic at UC Berkeley Law (disclosure: the clinic represents Authors Alliance on some matters, and we are big fans of their work), the brief masterfully explains the importance of this issue. From their brief, below is a summary of the argument (edited down for length): 

The conditions surrounding access to information are important. As the Supreme Court has repeatedly recognized, privacy is essential to meaningful access to information and freedom of inquiry. But in ruling against the Internet Archive, the district court did not consider one of CDL’s key advantages: it preserves libraries’ ability to safeguard reader privacy. When employing C

DL, libraries digitize their own physical materials and loan them on a digital-to-physical, one-to-one basis with controls to prevent redistribution or sharing. CDL provides extensive, interrelated benefits to libraries and patrons, such as increasing accessibility for people with disabilities or limited transportation, improving access to rare and fragile materials, facilitating interlibrary resource sharing—and protecting reader privacy. For decades, libraries have protected reader privacy, as it is fundamental to meaningful access to information. Libraries’ commitment is reflected in case law, state statutes, and longstanding library practices. CDL allows libraries to continue protecting reader privacy while providing access to information in an increasingly digital age. Indeed, libraries across the country, not just the Internet Archive, have deployed CDL to make intellectual materials more accessible. And while increasing accessibility, these CDL systems abide by libraries’ privacy protective standards. 

Commercial digital lending options, by contrast, fail to protect reader privacy; instead, they threaten it. These options include commercial aggregators—for-profit companies that “aggregate” digital content from publishers and license access to these collections to libraries and their patrons—and commercial e-book platforms, which provide services for reading digital content via e-reading devices, mobile applications (“apps”), or browsers. In sharp contrast to libraries, these commercial actors track readers in intimate detail. Typical surveillance includes what readers browse, what they read, and how they interact with specific content—even details like pages accessed or words highlighted. The fruits of this surveillance may then be shared with or sold to third parties. Beyond profiting from an economy of reader surveillance, these commercial actors leave readers vulnerable to data breaches by collecting and retaining vast amounts of sensitive reader data. Ultimately, surveilling and tracking readers risks chilling their desire to seek information and engage in the intellectual inquiry that is essential to American democracy. 

Readers should not have to choose to either forfeit their privacy or forgo digital access to information; nor should libraries be forced to impose this choice on readers. CDL provides an ecosystem where all people, including those with mobility limitations and print disabilities, can pursue knowledge in a privacy-protective manner. . . . 

An outcome in this case that prevents libraries from relying on fair use to develop and deploy CDL systems would harm readers’ privacy and chill access to information. But an outcome that preserves CDL options will preserve reader privacy and access to information. The district court should have more carefully considered the socially beneficial purposes of library-led CDL, which include protecting patrons’ ability to access digital materials privately, and the harm to copyright’s public benefit of disallowing libraries from using CDL. Accordingly, the district court’s decision should be reversed.

The court below considered CDL copies and licensed ebook copies as essentially equivalent and concluded that the CDL copies IA provided acted as substitutes for licensed copies. Authors Alliance’s amicus brief points out some of the ways that CDL copies actually quite different significantly from licensed copies. It seems to me that this additional point about protection of reader privacy–and the protection of free inquiry that comes with it–is exactly the kind of distinguishing public benefit that the lower court should have considered but did not. 

You can read the full brief from the Center for Democracy and Technology, Library Freedom Project, and Public Knowledge here.