Yesterday, Authors Alliance joined a diverse group of creators of online content on an amicus brief in Gonzalez v. Google, a case before the Supreme Court. The case is about Section 230 of the Communications Decency Act and whether it protects curated recommendations by platforms. Section 230 protects online service providers from legal liability for content generated by users, and is considered by many to be essential for a vibrant and diverse internet. By shielding platforms from liability for speech their users make on these platforms, Section 230 enables the free flow of ideas and expression online, including speech on controversial topics. This is consistent with First Amendment values and the functioning of the internet as we know it.
The case concerns ISIS recruitment videos posted on YouTube, which the petitioner alleges were recommended by the platform. Gonzalez argues that Section 230 should not shield Google from liability, and that it aided in ISIS recruitment by recommending these videos to users. Google, on the other hand, contends that Section 230 shields it from liability for recommendations made on the platform, including the recommendations at issue in the case.
Our brief makes three principal arguments. First, it argues that Congress intended Section 230 to foster a free Internet where diverse and independent expression thrives. We explain that 230 was meant to facilitate free expression online, which is precisely what it continues to do.
Second, our brief argues that platform recommendations contribute to the flourishing of free expression, creativity, and innovation online. Authors like our members are served by platform recommendations and curation: for authors whose works may not appeal to a general audience, platform recommendations enable readers interested in a particular topic or type of work to discover them. In this way, platform recommendation can serve authors’ interests in seeing their works reach broad and diverse audiences. This is particularly important for authors just starting out in their careers who have not yet found an audience, and platform recommendations can and do help these authors grow their audiences.
Finally, we argue that altering Section 230’s protections for recommendations could have dire consequences for current and future creators—including authors— and could chill the free flow of ideas online. If platforms were to be held liable for content created by users, we believe they would be inclined to take a more conservative approach, moderating content to avoid the threat of a lawsuit or other legal action. This could reasonably lead platforms to avoid hosting content on controversial topics or content by new and emerging creators whose views are unknown. An author’s ability to write freely, including on controversial topics, is essential for a vibrant democratic discourse. And if platforms were reluctant to recommend content by new creators, who may be seen as less “safe,” dominant and established creators could be entrenched, doing a disservice to less established creators. Were platforms to censor certain writings or ideas to avoid lawsuits, the internet would become less free, less vibrant, and more sanitized—doing a disservice to all of us.
Authors Alliance thanks Keker, Van Nest & Peters LLP for their invaluable support and contributions to this brief, as well as our fellow amici for sharing their stories.
Authors Alliance is pleased to add its support to an effort that would restore balance to the ebook market. Last week, Library Futures released a policy statement and model legislation that would help state legislatures resolve a host of challenges that make it difficult for libraries to lend ebooks and ensure their long-term availability.
Why we care: For authors who want to have an enduring impact on the world, having their writings fall into obscurity is a major concern. For print books, libraries have historically played an important role in making sure books did not drop out of circulation. No matter the current state of the market or what is going to make the biggest splash on a publisher’s bottom line (or even whether a book has long gone out of print), libraries make authors’ books available to readers in both the short and long term. Copyright law plays an important role in balancing the level of control that publishers have over copies they sell and the rights that libraries and their readers have to access and use those copies. Current law gives libraries fundamental rights, including the ability to buy copies on the open market, lend copies to users one at a time, and preserve books for the long-term.
For ebooks, publishers have been able to write their own rules for how libraries can use those books. That’s because every ebook that you buy–or that a library acquires –is not actually owned by the purchaser, but licensed by the publisher or ebook distributor. The terms of these licenses are largely dictated by publishers. In recent history, libraries have contended with contracts that severely limit how they can fulfill their mission – contracts that charge libraries multiple times more than what consumers pay, place strict limits on how many times a ebook may be lent out before the library has to pay for it again, place limits on how long the library can have access, limits on how long a user can check out a book, and limits on how researchers can use that book (e.g., limiting text and data mining), among many other limitations that don’t apply in the print world.
These kinds of contractual restrictions make an end run around the traditional market balance that existed in the print world. The end result is that for ebooks, authors are less likely to reach the readers they hope to, especially cutting out readers who rely on libraries for access and don’t have the financial means to purchase ebooks themselves. Restrictions on library preservation activities can also jeopardize long-term availability. While libraries are committed to continuing to pay for the care needed to maintain books long into the future, commercial publishers have no such incentive beyond the window in which a work is commercially viable. That window for commercial viability is short – on average, only 5 years. While some publishers (mostly academic publishers) have been willing to agree to license terms with libraries that provide for long-term availability for ebooks, most others have not, and instead actively frustrate library efforts to ensure long-term access. All of this means that as time goes on, these types of restrictions could make authors’ books harder—if not impossible—to find online.
What the proposed ebooks law does: We wrote last year about a Maryland law passed in 2021 that aimed to force publishers that sold ebooks in the state to also license to libraries on “reasonable terms,” addressing many of licensing problems we note above.
While the bill passed the legislature and became law,it ran into trouble almost immediately. The Association of American Publishers brought a lawsuit to enjoin its enforcement, arguing that because copyright law is the domain of federal law, state legislation governing ebooks is preempted by federal law and therefore unenforceable. Earlier this year, the Federal District Court of Maryland agreed, holding that because the Maryland law required that publishers “shall offer” a license to libraries whenever they offer an ebook to the public, it effectively forced publishers to grant these licenses, conflicting with the copyright holder’s federally granted exclusive right to control public distribution. The court explained, “[f]orcing publishers to forgo offering their copyrighted works to the public in order to avoid the ambit of the Act interferes with their ability to exercise their exclusive right to distribute. Alternatively, forcing publishers to offer to license their works to public libraries also interferes with their exclusive right to distribute.” The decision tracks closely with an opinion that Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office, released in 2021. The Copyright Office drew a sharp distinction between those state laws that purport to regulate the terms of a contract (which she concluded are unlikely to be preempted since they do not interfere with the right to distribute) with state laws that require publishers to grant a license (likely to be preempted). Perlmutter explained that “[b]oth the Third Circuit and the District of Utah have explicitly excluded from permissible state regulations those that “appropriate a product protected by the copyright law for commercial exploitation against the copyright owner’s wishes.”
Authors Alliance supports the Library Futures policy paper and model legislation because it offers a reasonable, productive, and viable alternative pathway for states to address inequities and unequal bargaining power in the ebook marketplace. Specifically, it proposes an approach that does not demand that publishers license to libraries on certain terms, but instead focuses on the state’s traditional and well accepted role in regulating how its own state contract law will apply, particularly in cases of unequal bargaining power. We encourage states to utilize the framework set out by Library Futures rather than repeating the same framework as the Maryland law.
Since this post was first published in February 2021, Authors Alliance has continued to collect stories from authors about their experiences with and views on CDL. Please help us to better advocate for your interests and amplify your voices by sharing your thoughts about CDL today!
Authors Alliance is continuing to gather feedback from authors about Controlled Digital Lending (“CDL”) in order to strengthen our advocacy work and better represent your interests. Several of our members have already shared their views on how CDL helps authors and researchers, and we are now asking you to add your voice by completing this short form.
Under the CDL digitize-and-lend model, libraries make digital copies of scanned books from their collections available to patrons, subject to limitations. Like physical books, the scanned copies are loaned to one person at a time and are subject to limited check-out periods. In addition, the hard copy is not available for lending while the digital copy is checked out, and vice versa. In short, a library can only circulate the number of copies that it owned before digitization. Here’s a helpful video explainer of how CDL works.
Authors Alliance supports CDL because the practice is not only backed by a good faith interpretation of fair use, it helps authors share their creations with readers, promotes the ongoing progress of knowledge, and advances the public good—objectives that are consistent with the mission of Authors Alliance and the purposes of copyright law. CDL is particularly beneficial for authors whose works are out-of-print or otherwise commercially unavailable: In the absence of digitizing and lending these books, many would simply be inaccessible to readers. The CDL model is a boon to the authors of these and other books, allowing them to find new audiences online.
In June 2020, a group of commercial publishers filed suit against the Internet Archive, arguing in part that making electronic copies of books available using CDL through Open Library constitutes copyright infringement. Authors Alliance supports CDL and believes the attempt to challenge it in the courts is without merit. We look forward to hearing your thoughts.
Authors Alliance thanks our research assistant, Derek Chipman, for his contributions to this post.
Recently, it was revealed that a school board in Tennessee had banned the Pulitzer Prize-winning graphic novel Maus, a work about the Holocaust, from being studied in the district. The news was met with outcry by many in the knowledge ecosystem and education communities, and, perhaps unsurprisingly, interest in the book soared in a version of the phenomenon known as the Streisand effect. Some readers interested in Maus accessed the work using the Internet Archive’s controlled digital lending platform. Then, the work’s publisher’s asked the Internet Archive to remove Maus from digital circulation, apparently motivated at least in part by a desire tomaximize profits. Libraries are essential for preserving our cultural heritage and vital to the preserving right to read, and digital libraries are no exception. Limiting access to knowledge by removing books from library shelves spurs every-day people into action, including high school students. This shows preserving the right to read, including the right to read works that have been banned from some uses, is an issue near and dear to the hearts of many. So why then have efforts to preserve banned books in digital libraries been met with resistance?
Digital libraries like the Internet Archive preserve and loan works, including banned books, via controlled digital lending, or CDL: a program by which physical books are purchased and scanned, whereupon the scan is available to borrow in place of the physical book. CDL loans come with strict time limits, just like traditional print lending, and a library is only permitted to loan out the number of digital copies matching the number of physical copies in its collection (known as the “owned-to-loaned” ratio). CDL is considered to be a fair use within many library communities, and it is an increasinglycommon practice for libraries. But publishers have taken aim at CDL in recent years, issuing statements against CDL and initiating a lawsuit against the Internet Archive opposing the practice.
It is important to note that the Internet Archive’s CDL program allows a rightsholder to opt out and request that their work not be made available via CDL, regardless of the motivation for doing so. While the Internet Archive understood the publisher’s motivation to be a desire to profit from Maus‘s renowned popularity, the publisher argued that its request was based on the author not authorizing digital editions of the work in the first place. Regardless, these issues shows that CDL is not a perfect tool for ensuring access to banned books. Still, efforts to preserve books in digital libraries when they are banned, and make them available to borrow via CDL where possible, as the Internet Archive did here, are commendable, and these efforts help keep culture and knowledge from disappearing into obscurity.
In general, digital libraries and controlled digital lending present exciting opportunities for authors who wish to see their works be read by the broadest possible audiences. The internet has been a vital tool that has allowed readers globally to evade censors and access knowledge freely, and digital libraries provide an important means of achieving this. However, the digital age also comes with unique challenges. If digital libraries were to cease operations, certain “born digital” works could be lost forever in a handful of years due to internet decay and format obsolescence, in what some digital preservationists call a “digital dark age.” As history has shown, industry efforts at self-preservation can be disastrous, with movies being forever lost to history in the 1937 Fox Fire and 1967 MGM Fire or music recordings lost forever in the more recent 2008 Universal Fire. Storing everything in one physical vault can lead to catastrophic loss and to adequately preserve our culture and allow for equitable access, and consequently, we should be encouraging the growth of digital libraries and their efforts at preservation.
Last week, Authors Alliance submitted a comment to the U.S. Copyright Office, responding to its new study about establishing a new press publishers’ right in the United States which would require news aggregators to pay licensing fees as part of their aggregation of headlines, ledes, and short phrases of news articles. Our comment, made in the second round of comments on this study, also responded to an initial round of comments from other stakeholders. Authors Alliance opposes a new press publishers’ right because it is contrary to the interests of our members and small press publications and moreover is inconsistent with longstanding principles of copyright law.
A New Press Publishers’ Right Would Not Help Many Authors and Publishers
In our comment, we explained that Authors Alliance does not support the adoption of a new press publishers’ right. As a policy matter, making it more difficult for news aggregators to enhance the availability of news articles means that those articles will likely reach fewer readers. Authors Alliance represents the interests of authors who have among their highest goals seeing their works reach wide audiences, and takes the position that this new press publishers’ right would not serve the interests of these authors.
While some commenters argued that news aggregation has led directly to a decline in author and publisher incomes, other commenters, such as the Copia Institute, publisher of the publication TechDirt, pointed out that news aggregation serves its interests by helping its news articles reach readers. As a small publisher, Copia’s business model depends on news aggregation to see its work make an impact, and making it harder for news aggregators to do this would thus not serve its interests. While larger publications may be able to extract licensing revenue under a new press publishers’ right, smaller publishers lose out on both licensing revenue and the wide audiences they can reach through news aggregation. And authors who publish in press publications are not a monolith: while some authors may prefer to prioritize maximizing licensing revenue from onward uses of their work, other authors, such as many of our members, instead prioritize seeing their works reach broad audiences. Reaching wide audiences can help authors accrue reputational capital and advance their careers, which are some authors’ primary goals. Authors may also themselves aggregate press publications for research and collaboration purposes, and depending on the contours of the proposed right, it could create liability for these authors.
A New Press Publishers Right Would Run Afoul of Copyright Law
To make matters worse, a new press publishers’ right threatens to undermine important exceptions and limitations to copyright, like the free use of uncopyrightable subject matter such facts and ideas, and the doctrine of fair use. Yet several commenters argued that aggregating headlines and ledes should require a license and corresponding payment. This was the case despite the fact that the Copyright Office stated in its Notice of Inquiry that titles and short phrases are not protected by copyright, a longstanding principle in copyright law. In fact, the idea that reusing snippets of copyrighted works for a different purpose than the original—such as to preview news articles from different publications on a given topic—has been affirmed in numerous court cases, notably Authors Guild v. Google. Proponents of a press publishers right attempted to avoid the issue of titles and short phrases not being copyrightable by arguing for a novel “qualitative vs. quantitative” inquiry as to whether these short excerpts are subject to copyright protection. Under such a theory, if a title or short phrase is extremely creative, it should be protected. But there is no basis for such a theory in copyright law, which instead establishes that short phrases and titles are not protected—full stop.
Similarly, proponents of a new press publishers’ right skirted the issue of requiring licensing for excerpts containing predominantly facts and ideas. Facts and ideas are not protected by copyright for reasons of public policy: these types of information are instead treated as “building blocks” of knowledge, free for others to use and build on. Because snippets of news articles tend to be quite fact-heavy, a new press publishers’ right could also undermine this important principle.
Other Arguments Against A Press Publishers’ Right
In our comment, Authors Alliance also explained that a new press publishers’ right could be unconstitutional. If it were to require mandatory licensing for information which lacks the requisite originality for copyright protection, establishing this right could be beyond Congress’ authority. Yet some commenters argued that there should be no originality requirement for protecting headlines and ledes under a new press publishers’ right, which would be an improper expansion of the scope of what copyright protects.
Furthermore, we pointed out that establishing this right could violate U.S. treaty obligations under Article 10 of the Berne Convention. Often referred to as the “fair quotation right,” this provision requires all signatory countries to permit authors “to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose[.]” This means that mandatory licensing for short excerpts could violate this obligation.
Other opponents of the proposed press publishers’ right presented a variety of compelling arguments that it should not be adopted. Many echoed Authors Alliance’s sentiments, and also emphasized the important First Amendment protections for the press which preserve press publishers’ and authors’ right to speak and make editorial decisions about their content. A new press publishers’ right could also stifle innovation and chill journalistic speech, requiring more legal review of headlines and ledes in order for publications to avoid legal liability.
Last month, after the Department of Justice filed an antitrust lawsuit to stop the merger of Penguin Random House and Simon & Schuster, we wrote about the intersection of antitrust law and publishing. The antitrust lawsuit is responding in part to a longtime pattern in publishing—the consolidation of publishers over time. In today’s post, we will discuss these consolidations, explaining how they can affect authors and contextualizing them historically.
Publishing Mergers and Acquisitions Today
Just last week, it was announced that a newly formed investor group had acquired Open Road Integrated Media—one of the largest standalone e-book publishers founded by former HarperCollins CEO, Jane Friedman. And Open Road itself purchased a UK-based publisher, Bloodhound books, just a few months back. This pattern is nothing new, but it shows how rapidly publishers can merge and change hands. It is not clear what will happen to Open Road’s operations in the wake of the sale, but the unpredictability of these transactions can work to authors’ detriments in a number of ways.
When publishers merge or acquire other publishers, a key question is what degree of independence each entity will have within the new one. For example, in the recent proposed Penguin Random House/Simon & Schuster merger, concerns emerged almost immediately about whether the various imprints under the Penguin Random House banner, which will include Simon & Schuster’s imprints if the merger goes forward, will be allowed to bid against one another for book deals. If not, the fewer competitors in the space to drive up bids for books might mean that authors receive lower advances. Publishers do allow intra-house competition in some cases: following the 2013 merger of Penguin and Random House, the new firm opted to allow its imprints to compete against each other, provided there was a publisher other than Penguin Random House involved as well.
Historical Patterns in Publishing Mergers and Acquisitions
While the proposed Penguin Random House and Simon & Schuster merger has generated significantcontroversy, mergers between trade publishers and publishing conglomerates have in fact been quite common over the past 50 years. According to a study published in Publishing Research Quarterly last year, purchasers tended to be corporate conglomerates in the 1960s and 70s, diversified media companies in the 1980s, financial buyers in the 1990s and 2000s, and other book publishers in today’s market.
Moreover, alarm over accelerating mergers within publishing is also nothing new. In fact, a 1977 New York Times article discussed the contemporaneous “merger fever” within publishing and even mentioned an antitrust investigation by the Department of Justice. Acquisitions like Bertelsmann’s purchase of a majority share of Bantam Books drew attention at the time, but these moves were just the beginning: Bertelsmann came to fully own Bantam in 1988, then merging it with Doubleday (a large conglomerate in its own right in the 1970s) before separately acquiring Random House in 1998 and reconfiguring Bantam and Doubleday as imprints within Random House.
Tracing these mergers can be dizzying, and moreover it can make it more difficult for authors to obtain reversions of rights when their works are no longer in print (rights reversion refers to the process of formally reclaiming rights that were formerly handed over to a publisher under a clause in the publication contract). For example, an author who published a book with Dutton Books in the early 1970s who wanted to contact her publisher in order to exercise her contractual right of reversion would have to trace the ownership of the publisher from to Dutch publisher, Elsevier, which bought Dutton in 1975, to a buyout firm, Dyson-Kissner-Moran, which purchased Dutton in 1981, to Everyman Library, which acquired Dutton in 1985, to Penguin Books, which purchased Everyman in 1986, and finally to Penguin Random House after Random House merged with Penguin in 2013. The author in this example would then have to contact Penguin Random House to obtain a reversion.
Despite these downsides of publishing mergers for authors, there is some evidence that the practice has benefitted the quality of trade books published. In a 1988 article on the topic, the New York Times argued that some mergers, such as Random House’s acquisition of Alfred A. Knopf in 1960, “strengthened both houses, thereby benefiting authors . . . and readers.” In fact, by the late 80s, the trade publishing industry was already dominated by a handful of major players, though the names and ownership structures have shifted over time.
Alternatives for Authors
It is important to keep in mind that there are now, and always have been, small and medium sized trade publishers, “boutique” publishers, and academic presses to fill some of the gaps left by consolidations among the largest trade publishers. Moreover, new and innovative publishers are emerging all the time: in 2020, Astra Publishing Housewas established as a literary-minded U.S. publishing house. Funded by Chinese media conglomerate, Thinkingdom Media Group, the firm is staffed with several trade publishing veterans. Similarly, this year, podcast host Zibby Owens announced the future launch of Zibby Books, which will publish just 12 books a year to start and feature an innovative profit-sharing program between authors and the firm’s employees.
While there are undoubtedly downsides for authors when trade publishers merge, it may also be that the latest transactions are simply part of a trend that has continued for years, albeit with different players and in different forms. In addition to the other types of publishers discussed above, open access publishing and self-publishing platforms have also risen in popularity in recent years, giving authors still other options when the trade publishing conglomerates are not appropriate for their works and goals.
In today’s post, as a part of our series of open access success stories that spotlight noteworthy openly accessible books and their authors, we’re featuring Peter Kaufman of MIT Open Learning. Kaufman made his new book, The New Enlightenment and the Fight to Free Knowledge, available for free under a CC-BY license upon its publication by Seven Stories Press. In the book, Kaufman discusses “the powerful forces that have purposely crippled our efforts to share knowledge widely and freely.” By releasing his work under an open access license, Kaufman has pushed back on these forces while also ensuring that his work reaches a wide audience. You can find the open access edition of the book here.
Authors Alliance: Can you tell us why you opted to make The New Enlightenment and the Fight to Free Knowledge openly available?
Peter Kaufman: My book is about the forces that have constrained our access to knowledge in the modern world, some of the angels that have fought to increase that access, and some of the monsters that continue their efforts to suppress it. The book was made available from the very date of publication as a downloadable free edition – and under a CC-BY license, to boot, which allows for the broadest use and reuse possible. My publisher, Dan Simon of Seven Stories Press, is a progressive deeply committed to releasing “works of the radical imagination,” as he puts it – and to media experimentation of the kind we all support.
AuAll: Did your audience or the subject matter of your book influence your decision to publish openly?
PK: Yes, beyond the history in the book – it opens in the 16th century – and the contemporary debates that I cover from the 20th century on, I’m addressing progressives who benefit from encouragement and example, and those on the fence about the many advantages – social, cultural, economic – of open access. I have been a long-time OER advocate and work at MIT Open Learning – the pearly gates for open access in higher education.
AuAll: What results have you seen from publishing your book openly?
PK: Because of the subject matter but also because of the license, the book launched with public online discussions at law schools, book stores, libraries, universities, and other organizations at the cutting edge of the freedom-to-know, including the Internet Archive and Creative Commons. A program with Wikipedia is forthcoming. I believe that the progress resulted in numerous social media impressions that otherwise we would not have seen – and postings by advocates in media reform, copyright reform, and free software.
AuAll: Could you share some lessons learned or other suggestions for authors?
PK: Do it. My book makes the point that in the end – in the long term, as John Maynard Keynes used to say – we all wind up in the public domain. Accelerate that process. Gain new readers. Get the right kind of attention. Find like-minded advocates. Contribute knowledge freely to the world a little faster than you otherwise would have.
This month, the Internet Archive is celebrating its 25th anniversary. At Authors Alliance, we regularly partner with the Internet Archive on projects around preservation of digital works, controlled digital lending, and other issues in copyright policy. In today’s post, we will share some things we love about the Internet Archive and how the resources it provides can support authors and help them reach their writing goals.
The Internet Archive lends out e-books through its digital library. Many of these loans require readers to obtain a library card from the Internet Archive, but these library cards are free and available to all internet users. The Internet Archive’s digital lending program enables authors to reach readers who are not able to access physical libraries containing the books they are interested in reading. Several Authors Alliance members have expressed enthusiasm about seeing their books on the Internet Archive’s virtual shelves because it helps them reach wide audiences.
But the Internet Archive’s digital lending program is also a boon to authorship itself: as part of the writing process, authors often need to access other works for research purposes, and the Internet Archive’s lending program can make this significantly easier. Particularly during the COVID-19 pandemic, when many libraries have reduced physical services, digital library services like those the Internet Archive provide can fill the gap. The Internet Archive’s library has facilitated research on genealogy, mythology, and historical texts that has been integral to creating new works of authorship.
The Internet Archive’s library also serves the important purpose of preserving books that might otherwise vanish into obscurity, helping authors’ legacies live on past the commercial lives of their books. For example, in July, a New York Times article dove into the search for an obscure dating advice book pseudonymously written by bestselling author, Dan Brown, which the reporter was unable to track down. The piece lamented that readers were unable to find the book since it was out of print, and errors in ISBN assignment complicated efforts to obtain used copies. Though the article did not mention it, it turns out that the Dan Brown book in question is available to borrow on the Internet Archive’s digital library. The short commercial life of most books mean that many books fall into obscurity once they are out of print, languishing unseen on library shelves or in personal collections. But the digitization work the Internet Archive has done ensures that out of print books and other cultural ephemera are preserved for future authors, historians, and cultural scholars.
Public Domain Works
Outside of its collection of modern e-books which patrons can borrow, the Internet Archive maintains a collection of thousands of public domain works that are free for users to read online or download. The public domain—the body of works of authorship which are not subject to copyright protection, often because copyright has expired—is an important resource for authors and readers alike. Once a work is in the public domain, authors are free to use it in whatever way they wish, such as creating adaptations, retellings, or musical or film versions. This being said, it is not always easy to acquire free and accessible copies of public domain works. Free e-book editions of public domain works can sometimes be found on e-book retailer platforms like Amazon, but this is not always the case, and these e-books might still be accompanied by technical protection measures and licensing terms that curtail the uses authors can make of these works. Many of the most well-known contemporary stories are in fact derivative works based on works in the public domain, and the Internet Archive’s trove of public domain works can make it easier for authors to produce this type of new creative work.
Similarly, public domain texts are rich sources for text data mining (automated analytical techniques aimed at analyzing digital text and data in order to generate information that reveals patterns, trends, and correlations in that text or data). For now, text data mining researchers interested in studying literary works are mostly limited to public domain texts because of the technical protection measures placed on modern e-books (Authors Alliance and others have asked the Copyright Office to grant an exemption to DMCA § 1201 to allow for text and data mining on modern e-books, though the Office has not yet made its decision). This limitation on text data mining makes the free, accessible public domain works available on the Internet Archive all the more important for authors and text data mining researchers alike.
In the debates around controlled digital lending (“CDL”), much has been said about whether and how CDL affects author incomes. Recently, the Internet Archive requested 10 years of sales data during the discovery phase of its ongoing lawsuit with several large publishers, seeking to support its argument that its digitization projects did not negatively impact book sales. As an authors’ group that represents the interests of authors who care deeply about their works reaching broad audiences, Authors Alliance is a unique voice in the conversation around the impact of different types of library lending on authors’ livelihoods. In today’s post, we will discuss the intersections between author income, traditional library lending, and CDL.
How Do Authors Make Money from Library Sales?
When an author signs a publication contract for her work, she is agreeing to be compensated by her publisher pursuant to the terms in the contract. The two main ways authors are paid are through an “advance against royalties”—an upfront payment or payments made when the contract is signed, the manuscript is delivered, and/or when the book is published—and through royalty payments. Once any advance paid to the author has “earned out” such that author royalties from sales exceed the advance paid to the author, the publisher pays the author a percentage of each sale. When a consumer purchases a book, the author then will receive a percentage of the sale based on the royalty rate set in her publication contract.
Like members of the public, libraries purchase books, and when they do so, authors are entitled to royalties on those sales. Importantly, libraries have purchased and lent books to patrons since time immemorial. In fact, in the mid-20th century, public libraries were the most reliable market for new books. But changes in the publishing ecosystem and widespread reductions in library budgets over time have led to a reversal of this pattern—in 2015, public libraries were responsible for just over 1% of book sales.
Once a library owns a physical book, the library is permitted to lend it out as many times as it likes, based both on public policy and what is known as the “first sale doctrine.” First sale doctrine is based on a provision within U.S. copyright law that allows the owner of a physical copy of a copyrighted work, like a book or DVD, to sell, lend, or otherwise dispose of that copy however she wishes, provided that it does not infringe any of the copyright holder’s exclusive rights. For example, the owner of a copy of a book can lend it out to her friend, lend it out to another friend after the first friend has returned it, and then give it away to a third friend. On the other hand, the owner of a copy of a book cannot make multiple copies to share with her friends simultaneously without infringing on the copyright holder’s exclusive rights of reproduction and distribution. Because of public policy favoring libraries’ roles in the knowledge ecosystem and the first sale doctrine, libraries can lend out copies of books they have purchased as many times as they are able.
How Does Traditional Library Lending Impact Author Income?
As discussed above, library lending results in author income when the libraries buy books in the first instance. But the effect of library lending on consumer book sales, has, perhaps surprisingly, not been the subject of extensive research—as of 2019, there had never been a major study on the impact of library lending on the publishing industry as a whole, but there has long been evidence that library patrons also purchase books, and may even do so more frequently than non-library patrons. In a 2020 survey, nearly a third of consumer respondents reported purchasing a book that they first found in a library, a number that was even higher for avid readers.
Library advocates have long championed the ability of libraries to bring attention to authors and their works, which often results in increased income for those authors. Many libraries host author events in which an author’s books are available for sale to attendees, and these events often result in more demand for that author’s books at the library, leading the library itself to purchase more copies, resulting in more author income. Libraries are also known to increase discoverability of books, both through author events and by exposing patrons to new books and new authors in other ways. In the 2020 survey mentioned above, 30% of respondents reported that, when a book they wanted to read was unavailable at their local library, they purchased the book, either online or at a local bookstore.
How Does Controlled Digital Lending Impact Author Income?
Controlled digital lending is a lending model many libraries across the country have implemented in recent years to increase access to works in their collections. CDL involves a library scanning a physical book it has purchased and is already in its collection, and then lending out this scanned copy in lieu of the physical book. Under the CDL model, libraries are not permitted to lend out more digital copies than they have physical copies at one time. This so-called “owned to loaned ratio” ensures that CDL stays within the bounds of what the first sale doctrine permits: each copy may be loaned out to only one patron at a time. Because libraries have already purchased the physical copies, authors have already received any royalty income they were entitled to from the sales.
Similar to interlibrary loans, CDL makes works available to readers who cannot access the physical spaces where the books are held. In this way, CDL operates as an analogue to traditional print lending: rather than a library patron having to physically travel to a library to check out the book they want to read, they can receive a digital copy loan instead, which comes with the same controls as print lending—limited check out times and a maximum number of loans at one time based on the number of copies the library has purchased. CDL seeks to replicate digitally what is difficult to achieve with physical books: sending a book to a reader who is interested in reading it, wherever she may be located, within the confines of limited library budgets. Many have also argued that CDL also constitutes a fair use, further bolstering the legal basis for the practice.
The role of CDL in the library ecosystem has taken on a new prominence during the COVID-19 pandemic, when libraries have reduced hours or shuttered physical spaces altogether. Over the past year and a half, CDL has served as one important way to bridge the gap and ensure readers can still access library books despite these limitations. And importantly, due to the requirement that a library purchase a print book in the first place and the limitations put in place to ensure that each loan is discrete and temporary, CDL does not hurt author incomes. In fact, due to libraries’ roles in increasing the discoverability of books, particularly when they are digitized, CDL may even result in more sales for authors whose books have been made available in this way.
Authors Alliance has long supported CDL as a way to help books reach readers. Many individual authors also support CDL, as it helps works reach readers who otherwise could not access them, bringing reputational benefits and the potential to increase book sales to consumers.
It is no secret that Authors Alliance loves libraries, and we support policies that help libraries fulfill their essential role of making knowledge and culture available and accessible to all. In recent months, several states have proposed and in some cases passed legislation that requires publishers to license e-books to libraries under “reasonable terms.” Similarly, bookselling and publishing giant Amazon has taken steps to make its content available to libraries, following years of refusal to license e-books to libraries altogether. In today’s post, we will share some of the details of these exciting developments.
Over the course of the past year, three state legislatures have introduced legislation that would impose limits on a publisher’s ability to sell e-books to libraries at a high cost. Under the current licensing model, libraries can pay as much as $60 per title for an e-book license, which often have very restrictive terms, whereas consumers can purchase an e-book license for the same title at a fraction of the cost. The first of these bills was passed in Maryland, and the New York state legislature has also recently approved the New York bill. A bill in Rhode Island is currently pending. Additionally, groups in Connecticut, Texas, Virginia, and Washington have reportedly begun advocating for similar legislation.
Maryland’s Library E-Book Lending Law
Maryland was the first state to enact legislation requiring publishers to offer libraries e-book and digital audiobook licenses on reasonable terms. The Maryland state legislature unanimously passed the bill in March, but before it was approved by the governor, it faced last-minute opposition from the Association of American Publishers (“AAP”), who claimed the bill was unconstitutional. Despite these challenges, Governor Larry Hogan announced that the bill was enacted into law in late May. The law will go into effect in January 2022, and requires publishers who license “electronic literary products” (which may be broader in scope than “e-books”) to the general public to “offer to license the product to public libraries in the State on reasonable terms that would enable public libraries to provide library users with access[.]” It remains to be seen what will constitute “reasonable terms” under the new Maryland law, but the Maryland Library Association has recently issued a statement providing guidance on what might constitute reasonable terms and how these might be developed.
Despite the tough opposition it faced from publishers, the Maryland law has been described by its proponents as “fairly mild.” This is because it does not fundamentally change the e-book licensing scheme employed by publishers, whereby e-books are temporarily licensed to libraries, who remain unable to actually own these digital copies. Instead, the law simply requires publishers to offer e-book licenses to libraries on terms they can afford in order to allow libraries to perform their essential function of serving patrons: readers are not served when libraries cannot afford e-book licenses. This problem took on particular salience during the pandemic, when many readers were unable to access physical books at all. The new Maryland law takes aim at this issue without disrupting the traditional e-book licensing model that publishers are reluctant to abandon. Nonetheless, the AAP has since affirmed its opposition to these legislative efforts, maintaining that the Maryland law and other state legislation like it are inconsistent with federal copyright law.
New York’s Library E-Book Lending Bill
Last month, the New York state legislature passed a bill similar to the Maryland bill. Just as in Maryland, state legislators voted unanimously in favor of the bill’s passage. The New York bill also requires publishers to offer libraries e-book licenses on “reasonable terms” if those e-book licenses are also available for purchase by the public. The New York bill proceeds from the premise that “[p]ublic libraries provide equitable access to information for all.” Because many New Yorkers (like many readers writ large) prefer digital books over physical ones, whether due to print or mobility disabilities or for ease of access, the bill takes aim at “discriminatory practices” such as e-book embargos, whereby libraries must wait months to purchase licenses for new e-books.
The New York bill has not yet been sent to Governor Andrew Cuomo for his signature, but advocates are “cautiously optimistic” that he will sign once it has been sent. The bill must be sent to the governor by the end of the calendar year, and once signed, will take effect after just 19 days. This means that while the New York bill is not yet law, it may well take effect before Maryland’s new law if sent to and signed by Governor Cuomo.
Rhode Island’s Library E-Book Lending Bill
In Rhode Island, the analogue bill to the Maryland and New York bills was re-introduced in April of this year after a similar bill last legislative session failed to gain momentum. The 2021 bill, which, like the Maryland legislation, includes digital audiobooks, was then recommended for further study by the House Corporations Committee, with no further updates since late April. Former Rhode Island state senator, Mark McKenney, penned an op-ed voicing his support for the bill, pointing out that “libraries lending books to patrons hasn’t put publishers out of business,” and calling out Amazon specifically for its policy of refusing to sell or license e-books it publishes to libraries and schools altogether.
Amazon and the Digital Public Library of America
In December 2020, Amazon announced it was in talks with the Digital Public Library of America (“DPLA”) to make thousands of books it publishes available to public libraries via the DPLA exchange. The long-awaited deal between the organizations was signed in May, and is set to go into effect sometime this summer. The partnership contemplates several different licensing models, including flexible “bundles” of lends and more traditional models involving time limits and restrictions on how many patrons can check out an e-book at a time. Librarians have applauded Amazon for offering the less restrictive “bundle” models, which provide additional flexibility for libraries. Unlike the state library e-book lending legislation, the Amazon-DPLA partnership will offer an alternative to the traditional licensing scheme.
Library advocates are cautiously optimistic about the Amazon-DPLA partnership, but also note that how much it will help libraries will depend on how Amazon prices its e-books for libraries, which is at this point unknown. Unlike the state library e-book lending legislation discussed above, the Amazon deal makes no mention of how library e-book licenses will be priced. Moreover, not all Amazon-published titles will be made available through the partnership—self-published Kindle originals and Audible audiobooks are not included in the program, for example. Another limitation of the Amazon-DPLA partnership is that it requires libraries to participate in the DPLA marketplace, and will make the e-books readable with the SimplyE reading app, an open source e-reading platform developed by the New York Public Library. Many library patrons today access e-books via more popular marketplaces such as OverDrive, and both iBooks and Kindle are much more popular e-reading platforms with which patrons are likely to be more familiar. Yet the Amazon-DPLA partnership is undoubtedly a step in the right direction towards ensuring greater access to books published by Amazon. Moreover, the deal is not exclusive, meaning that Amazon could develop similar partnerships in the future in order to make its e-books even more accessible to library patrons.