Fourth time the charm?
Since 2005, there have been three much-ballyhooed efforts to create a national digital public library for readers to access e-books just as they get physical books from their local library: easily, and for free.
None of these ambitious ventures – the Google Books initiative, the Open Content Alliance, nor the Digital Public Library of America – achieved that goal. There is still, as the former codirector of the Harvard Library Innovation Lab David Weinberger wrote in this space in 2015, “a library-shaped hole in the Internet.”
Comes now the San Francisco-based, nonprofit Internet Archive (“Our mission is to provide Universal Access to All Knowledge”), presenting an ambitious and controversial digital library program. The IA and its founder, Brewster Kahle, are famous for inventing the Wayback Machine, which claims to have archived 279 billion defunct web pages (!).
The IA’s Open Library program says it has scanned four million books for public consumption: “[We] can build the online equivalent of a great, modern public library, providing millions of free digital books to billions of people.”
Here is how Open Library works: If they own a physical copy of a book, you can download its digital avatar. But they lend only one digital copy for each physical copy, as if they were a brick-and-mortar library. For instance, they own a copy of Marian Schlesinger’s 1979 memoir, “Snatched from Oblivion,” but the e-version has been checked out. So when that copy is “returned,” I am next in line to read it.
For comparison, you can’t find that book in Overdrive, a commercial vendor that libraries use to deliver e-books to borrowers. (I’ve had it in for Overdrive ever since I learned they didn’t stock Graham Greene’s “The Heart of the Matter,” which I was desperate to read on vacation. But they do stock Emily Giffin’s chick-lit frippery, “Heart of the Matter,” so to heck with them.)
The Internet Archive is relying on an untested, and as yet nonexistent, legal doctrine called the digital first sale right. The theory is that the owner of a book has the right to scan it, and lend it out to whomever they like, if they don’t charge money. “If what they are doing is legal, they are relying on an interpretation of the first sale doctrine that no court has yet adopted,” explains Mary Rasenberger, the executive director of the Authors Guild, which maintains that the IA “[is] displaying and distributing full-text copies of copyrighted books to the entire world without authorization, in flagrant violation of copyright law.”
The Guild has instructed members how to send takedown notices to the Internet Archive, requesting that books be de-listed. Meanwhile, the purported right of digital sale is under review in the Second Circuit Court of Appeals.
The Guild is the famous litigant in Authors Guild v. Google, a complicated legal Armageddon that torpedoed Google’s grandiose plan to digitize the bibliosphere. The Google effort, which I thought held out tremendous promise, foundered for several reasons: For instance, many authors didn’t trust for-profit Google to be an honest broker in doling out royalty payments to books still protected by copyright.
Then, when the Guild and the Association of American Publishers finally reached a legal settlement with Google that provided for author payments, a self-aggrandizing federal judge dynamited the whole arrangement, leaving us with the status quo — no digital public library.
I have written two books that are available for borrowing on the Internet Archive. I invite you to read them; in fact, I wish you would.
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