the bridging of the physical and digital worlds on the internet archive
The Gargoyle – Volume 69 Issue 8, 1 Feb 2024 – Link (pg. 7)
The internet, despite sharp-shooting DMCA and court-ordered takedowns, is still the wild west in the land of copyright. You’ll find it impossible not to violate or witness a violation – a Sasuke x Naruto “Dancing in the Dark” AMV uploaded to YouTube may be just as illegal as notorious pirating sites, in principle if not degree. With growing scrutiny over infringement, Wikipedia carefully cites sources and uses media that is legally cleared by permission, public domain, or fair use. So far, they’ve avoided copyright-related legal troubles. The Internet Archive (cited 130,000 times on Wikipedia in 2019), another huge information-spreading non-profit, hasn’t been so lucky. The place to go if I want to watch a 1920s French film, research decades of magazines, or find a copy of a deleted website from 2003, archive.org is practically my favorite place on the internet. Even UofT directly works with the Internet Archive to digitize hundreds of thousands of their books – the same archiving website currently being legally pounded by publishing and music corporations for copyright infringement.
Hachette et al. won their case against the Internet Archive in August 2023, leading to the publishers’ books being pulled from the website (edit: IA lost their appeal in September 2024). The only win the Internet Archive got was that books with no ebooks were permitted to stay – because that issue was outside the case’s scope. While the literary fight continues as the Archive appeals the decision, they’re also dealing with a lawsuit from Universal Music Group and 5 other record companies for digitizing 78 rpm records under the Great 78 Project.
The Hachette case is a worrying sign for the future of the Internet Archive. The “Controlled Digital Library” (CDL) model the Internet Archive and other online libraries use for their books makes sense for most people – like physical libraries, CDLs allow users equal to the number of books the library owns to borrow a digital copy for a limited time without being able to download the book permanently. The Internet Archive adopted this system in 2010 in partnership with the Boston Public Library and other libraries. However, the ruling isn’t surprising from a legal standpoint. Firstly, the copies are unauthorized reproductions and, secondly there is no “digital first sale” doctrine like that which allows physical books to be resold or lent. That’s right, there needs to be a legal precedent set to allow such a basic function of Owning Something. This freedom is obvious with physical books, so why is it not with digital books? The reality of our digitized minds and bodies is denied. People live online as much as they do physically – some people moreso.
As this case is the most solid precedent set for CDLs, it furthers the question of what the differences between physical and digital libraries really are. One glaring difference is the limited accessibility of the physical world. Some out-of-print or non-ebook materials are impossible to track down, some people (especially outside the West) can’t reach booksellers or libraries, some disabilities are not accommodated by publishers. The Internet Archive may keep up their print-disabled copies of books because an international treaty the US ratified in 2019, the Marrakesh Treaty, eases copyright limitations on specially-adapted books – this has been determined in court as fair use. But these copies are limited to those eligible by qualification of blindness, impaired vision, or physical disability in holding a book or moving their eyes. People with other disabilities, such as movement difficulties, dyslexia, and attention impairment, may be advantaged by the same digital copies they aren’t qualified for. Another difference is the ridiculous costs libraries pay to license (rather than own) ebooks and audiobooks. Several organizations advocate for a better deal, like the Canadian Urban Libraries Council on econtentforlibraries.org and Fight for the Future on whocangetyourbook.com.
The internet is used by copyright proponents as the Big Danger that the law must “protect artists” from (and corporations (and their profits (and the economy))). But the internet is just as easily taken advantage of to unlimited ends by publishers. Why are libraries, and for that matter consumers, only able to license ebooks rather than buy them? The right of ownership received attention recently when TV shows with no physical release were taken off of their home streaming service. “Owning” mainstream media online is impossible – you will never own the file itself, you will always depend on the platform for access. As Patrick McHale said on bygone-Twitter after his series Over the Garden Wall was removed from Max: “I hope somebody is out there ripping & saving all the stuff on all these streaming services because I’m pretty sure so much of it is gonna just disappear and become lost media.” The Internet Archive and their CDL system suggests a fair method of accessibility (in all senses of the word) that is unacceptable to publishers who want to enact as much control as they can on the internet.
Everything deteriorates or gets lost – even the internet. The Internet Archive’s Wayback Machine is one savior of the lost internet, but even that tool is compromised by the organization’s legal financial burden. All archives are at risk. The expansion of the conservative frontier to institutionalize a free internet directly threatens all libraries. If digital libraries cause harm by distributing authors’ works, then physical libraries do too. If it is established that libraries don’t owe publishers anything in the physical world, why do they owe them above and beyond in the digital world? Why are the processes different? I’m completely unconvinced by the arguments for the “limited longevity of physical books” or the advantages of licensing. There needs to be a radical case that protects digital libraries as the first sale doctrine does for physical libraries. The physical body and the digital world are not separate. The limits to digital accessibility are unfair limits to our lives.