Andy Oram‘s article Fenced-off culture, the privatized Internet, and why book publishers lean on a 30 year-old-doctrine is essential reading for anyone interested in the free flow of ideas. An excerpt summarizing recent developments sets the stage for Oram’s analysis:

In June 2020, shortly after the dramatic pandemic-related closure of libraries, four publishing companies sued the Internet Archive not just for distributing books without authorization, but for making copies in the first place. The brief filed by the publishers paints an alarming scene, calling the nonprofit Archive a “major commercial business” (paragraph 92) and suggesting that the Archive’s work “causes substantial harm” to the publishers (paragraph 119). In contrast, the Electronic Frontier Foundation, in a brief supporting the Archive, provided evidence that no commercial harm occurred (section II.D).

“This lawsuit represents a direct challenge to the ability of libraries, as stewards of free information for the public, to provide open, non-discriminatory access to culture in the modern age.” says Kyle K. Courtney, lawyer, librarian, copyright advisor at Harvard Library, and co-founder of Library Futures.

But the impact could be even bigger. If this lawsuit is successful, the increasing number of resources that exist in digital form would be controlled entirely by their publishers. Once the publisher withdrew a work or went out of business, the work would disappear. Such an environment would hollow out not only the principles of first sale and fair use, but potentially the third pillar of free information: the public domain.

A successful lawsuit would also tempt other copyright holders, perhaps including web sites whose contents are preserved for posterity by the Internet Archive, to piggyback on the court ruling and require the destruction of online copies. Sims says that the Archive case “is a huge piece of what we’re dealing with in libraries right now.”

You might think you know the direction this article is heading, but I am about to make a dramatic turn. The negative effects of the lawsuit are amply discussed by a number of journalists, including the article mentioned earlier in The Nationand two others by Bustillos, “Publishers Are Taking the Internet to Court” and “You Can’t Buy These Books.” Slate has also been covering the lawsuit. Libraries themselves have also added their voice to the fray.

My goal in this article is to trace the conflict back 30 years and show why copyright law makes the suit possible. I approached the publishers who launched the lawsuit for comment, and none of them responded. But having worked for a publisher myself for 28 years, and having explored the issue of digital copyright since it first emerged as a public issue, I believe I can express their point of view. As you will see later in the article, though, the publishers’ refusal to engage leaves an awkward hole in our attempts to make sense of their position.

Thanks to Sabrina Pacifici and for continuing to feature the best ideas from today’s thought leaders.