Librarian's lament: Digital books are not fireproof

Publishers are using copyright law as a battering ram to assert corporate control over the public good.

The disturbing trend of school boards and lawmakers banning books from libraries and public schools is accelerating across the country. In response, Jason Perlow made a strong case last week for what he calls a "Freedom Archive," a digital repository of banned books. Such an archive is the right antidote to book banning because, he contended, "You can't burn a digital book." The trouble is, you can.

A few days ago, Penguin Random House, the publisher of Maus, Art Spiegelman's Pulitzer Prize-winning graphic novel about the Holocaust, demanded that the Internet Archive remove the book from our lending library. Why? Because, in their words, "consumer interest in 'Maus' has soared" as the result of a Tennessee school board's decision to ban teaching the book. By its own admission, to maximize profits, a Goliath of the publishing industry is forbidding our non-profit library from lending a banned book to our patrons: a real live digital book-burning.

We are the library of last resort, where anyone can get access to books that may be controversial wherever they happen to live -- an existing version of Perlow's proposed "Freedom Archive." Today, the Internet Archive lends a large selection of other banned books, including Animal FarmWinnie the PoohThe Call of the Wild, and the Junie B. Jones and Goosebumps children's book series. But all of these books are also in danger of being destroyed.

In the summer of 2020, four of the largest publishers in the U.S. -- Penguin Random House among them -- sued to force our library to destroy the more than 1.4 million digital books in our collection. In their pending lawsuit, the publishers are using copyright law as a battering ram to assert corporate control over the public good. In this instance, that means destroying freely available books and other materials that people rely on to become productive and discerning participants in the country's civic, economic, and social life. 

Copyright law grants authors and publishers a limited monopoly over the books they produce. The law also enshrines a host of socially beneficial uses the public may make of those books without permission or payment. The famously flexible fair use doctrine has allowed libraries to continue serving the public in the face of rapid technological and social change. 

If ever there was a moment of compelling "socially beneficial" access to books, it came in March 2020 when the COVID-19 pandemic shut down in-person library use almost everywhere. In response to the unprecedented crisis, more than 100 libraries holding critical books they could not lend signed a statement supporting the Internet Archive's establishment of a temporary National Emergency Library. The NEL allowed patrons controlled digital access to those collections that were locked away physically. It was a lifeline to trusted information for parents, teachers, and students around the world.

Yet, in an extreme overreaction to the facts, the publishers sued in June 2020 to shutter the NEL, along with our book lending practice as a whole. And in addition to demanding millions of dollars in monetary damages and fees, the lawsuit is calling on the Internet Archive to destroy all the digital books in our collections. It's a digital book burning on a massive scale.

If the publishers prevail, much more than the future of the Internet Archive will be at risk. What publishers want is to end libraries' ownership of their own collections. Instead, publishers want to rent digital books to libraries, like landlords. They want to control our cultural commons for their own commercial benefit. 

Think about what just happened with Maus. When a local government entity banned this book, the publisher decided to pull it from a digital library's bookshelves, restricting our patrons from reading it in order to extract maximum profits. Whether through corporate bullying or government banning, digital books are not immune from censorship.  

The Internet Archive's lending of a digital version of the book did nothing to diminish Maus's recent surge in sales. Even so, the publisher decided it had to do everything possible to remove the book from our library. It turns out you can burn a digital book.

Chris Freeland (@chrisfreeland) is a librarian and Director of the Internet Archive's Open Libraries program

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