With libraries shuttered, e-book lending booms, leading to new conflicts

Summer typically marks some of the busiest times for local libraries. Bored kids flock to libraries for entertainment, and parents rely on them as a free and safe replacement for the supervision usually offered by schools. But with COVID-19, libraries have had to rethink their summer programs, and the way they can serve local communities.

Many libraries have turned to e-book-lending programs like Hoopla and Overdrive, which have seen usage surge since March. That increased usage has also put a spotlight on the costs associated with these services, and the role that book publishers play in the digital transformation of libraries, as well as conflicts between business models and policies designed to serve the public good.

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This week, a number of publishers sued the Internet Archive, a San Francisco-based nonprofit, for the launch of a free, unlimited e-book-lending program during the pandemic. Publishers allege the service infringes on their copyrights, but critics suggest the companies are trying to set an example against more permissive approaches toward online lending, and ultimately force libraries to abandon long-established fair-use principles in favor of commercial lending services.

Huge growth for digital lending services

When state and local governments began their stay-at-home orders, local libraries across the country were sent scrambling. "It was a pretty significant shift," said Sarah Fetzer, archivist custodian of the Northampton Township Library in Bucks County, Pennsylvania. Since her library closed its doors at the end of March, Fetzer and her colleagues have been busy working from home, organizing online events and getting the word out about e-book lending.

The Northampton library offers patrons access to multiple e-book-lending services. These include Overdrive, owned by the Japanese ecommerce giant Rakuten, and Hoopla, from Midwest Tape, which also distributes physical media and audiobooks for libraries. Both services have seen massive usage spikes. E-book checkouts through Overdrive's Libby app increased 51% since mid-March, with app installs more than doubling, compared to pre-COVID-19 averages. Hoopla has seen 300 new library systems join since March 2020, according to its co-founder and president Jeff Jankowski.

Overdrive and Hoopla both offer library patrons free access to thousands of e-books, audiobooks and other items, but neither service exactly works like Netflix. Overdrive only makes a limited number of digital copies of a book available to each library for a fee. If a book is checked out by a patron, others have to wait for their turn. Conversely, Hoopla enables patrons to lend any copy from its catalog without wait times, but charges libraries each time a title is checked out. "With Hoopla, we are paying per use," Fetzer said. To control costs, libraries set their own rules on how many titles a patron can check out per month.

To better serve its community, the Northampton Township library changed those caps during the pandemic, upping the number of allowed borrows per month from 10 to 12. Fetzer said that her library system was comparably well-funded, but she acknowledged that the costs associated with digital services could be significant, especially for libraries that already face budget deficits. "I can see how it would be easy for a small library to run up a huge bill on Hoopla," Fetzer said.

A Hoopla spokesperson said that the company had been working with local libraries to control costs during the pandemic, giving them access to a pool of over 2,300 titles that could be lent out as "bonus borrows." "For libraries, Hoopla absorbed the cost of digital borrows for titles in this collection — which enabled our partners to provide high-quality content and resources to their community, at no cost to their systems," Jankowski said. Users accessed titles from this collection around 1 million times, but Hoopla shut the program down at the end of May. "We're really excited with how popular it was and are working on how we might do something similar in the future," he added.

An emergency library … or a piracy site?

Aside from costs, services like Overdrive and Hoopla have other downsides. Their catalog, for instance, is limited to digital titles available for licensing from participating publishing partners. "Overdrive and Hoopla only have access to e-books," wrote Internet Archive founder Brewster Kahle in an April letter to Sen. Thom Tillis. "They do not have access to the paper books sitting inaccessible on library shelves and schools. "

Kahle's team is looking to fill that gap during the pandemic: In March, the Internet Archive launched a project called the National Emergency Library, giving readers unlimited access to 1.4 million e-books. "For the first time in history, the entirety of the nation's print collection housed in libraries is now unavailable, locked away indefinitely behind closed doors," the Internet Archive's open libraries director Chris Freeland wrote in a blog post. "There are 650 million books that tax-paying citizens have paid to access that are sitting on shelves in closed libraries, inaccessible to them."

Publishers took issue with the Emergency Library and filed a lawsuit Monday. "[The] Internet Archive is conducting and promoting copyright infringement on a massive scale," Association of American Publishers President and CEO Maria Pallante said. "By illegally copying and distributing online a stunning number of literary works each day, [the Internet Archive] displays an abandon shared only by the world's most egregious pirate sites."

The comparison to file-sharing sites is not entirely accurate. Books made available through the Emergency Library are being secured with DRM software, and users only have access to each book for two weeks, after which they'll have to renew it. Once the national emergency expires at the end of June, the Internet Archive is going to reinstitute waitlists similar to those maintained by Overdrive, meaning that the digital copy of a book can only be accessed by a single reader at any given time — something it calls "controlled digital lending."

Publishers are also taking issue with the way the Internet Archive has been building its book catalog. Instead of striking licensing deals, the Archive acquires paper copies of titles from donations, and then digitizes them with its own book-scanning hardware. Since 2006, the Archive has scanned more than 2 million books this way. Initially focused on books with expired copyrights, the library began some time ago to also loan out digital copies of books that are still in print, including popular titles from authors like Dan Brown and Stephen King.

To adhere to the self-imposed restrictions of controlled digital lending, the Archive holds onto a physical copy of every book it distributes in digital format. However, publishers don't buy the argument that this is legal, calling the "one-to-one conflation of print and e-books … fundamentally flawed" in their lawsuit. Among other things, publishers argue that e-books don't degrade, doing away with the need for repurchases. "Copyright law provides owners with the exclusive ability to control their works and doesn't give anyone the right to systematically scan books and distribute digital copies to the global public without permission," AAP VP of communications Cara Duckworth said.

Commercial licensing models clash with fair use rights

Kahle told Protocol he found the lawsuit disappointing. "Their having sued during a pandemic is not helpful as everyone is busy dealing with the basics of getting our jobs done in a difficult circumstance," he said. The Internet Archive does have plenty of defenders, and its National Emergency Library has gained support from hundreds of librarians at universities across the country.

The digital library has also gotten support from the Authors Alliance, a group of creatives that advocate for more-permissive lending models in the digital age. The group hasn't taken a stance on the Emergency Library itself, but it has come out in support of controlled digital lending, with Executive Director Brianna Schofield calling it "a boon to … authors as it allows them to find new audiences online." This was especially true for authors whose books aren't available via commercial services like Hoopla and Overdrive, she told Protocol. "In the absence of digitizing and lending these books, many would simply be inaccessible to readers," she said.

Some already predict that the lawsuit could result in a lengthy fight, as well as "major test of fair use law," as copyright lawyer Howard Knopf put it on Twitter. Knopf and other critics believe that publishers are ultimately looking to change how libraries can operate. For decades, public libraries have been free to acquire books on the open market, and then lend them out to their patrons, under a copyright provision known as the first sale doctrine.

As media goes digital, critics believe that rights holders are looking to replace those legal frameworks with far more restrictive commercial licensing models. "The big publisher industry … isn't letting the COVID crisis go to waste," Knopf added on Twitter. The AAP's Duckworth disagreed. "Under the Copyright Act … the first sale doctrine only applies to physical works and not digital copies," she told Protocol.

On the ground, some of those conflicts can seem far removed from day-to-day reality, as librarians struggle to figure out how to serve their communities while their facilities remain closed. "Libraries are so much more than just books," Fetzer said. The Northampton Township library has long hosted workshops around health and financial literacy, which it is now trying to replicate on Zoom.

The library also just signed up for a new service called Beanstack to offer its popular summer reading program online, but Fetzer admitted that it won't reach everyone, even with e-book lending and Zoom classes. Even in her comparably affluent community, there are numerous households without internet at home. "It's a moot point whether we offer virtual programs or e-books," she said. "They can't access it."

Correction (June 8): An earlier version of this story misstated Jankowski's role at Hoopla. He is the co-founder and president.