Libraries are Bad Now?

From the decision in Hachette v. Internet Archive (opinion pdf, h/t TechDirt) published the other week:

To be sure, expanding access to knowledge would, in a general sense, benefit the public. “But [a]ny copyright infringer may claim to benefit the public by increasing public access to the copyrighted work.” Harper & Row, 471 U.S. at 569. That does not alone render the infringement lawful. Indeed, the Copyright Act and its empowering constitutional authority reflect a considered judgment that “the Progress of Science and useful Arts” is best promoted by laws that protect authors’ original works and permit authors to set the terms of engagement, at least for a limited time. See Sony, 464 U.S. at 429. Doing so benefits the public “by providing rewards for authorship.” Google Books, 804 F.3d at 212. This monopolistic power is a feature, not a bug, of the Copyright Act.

Within the framework of the Copyright Act, IA’s [Internet Archive’s] argument regarding the public interest is shortsighted. True, libraries and consumers may reap some short-term benefits from access to free digital books, but what are the long-term consequences? If authors and creators knew that their original works could be copied and disseminated for free, there would be little motivation to produce new works. And a dearth of creative activity would undoubtedly negatively impact the public. It is this reality that the Copyright Act seeks to avoid.

Huh.

If authors and creators knew that their original works could be copied and disseminated for free, there would be little motivation to produce new works.

And yet:

• Founded in 1790, Franklin Public Library is the first and oldest public lending library in continuous existence in the United States.
• Established in 1833, the first modern public library in the world supported by taxes was the Peterborough Town Library in Peterborough, New Hampshire.

Looking at book sale revenue, Statista shows revenue increasing from 1992–2003, leveling off for a few years, and then declining 2008–present day.¹

Huh, again.

Libraries aren’t new. They’ve been around in the US since at least the 16th century. Book sales revenue in the US alone climbed from $8.3 billion in 1992 up to $17 billion in 2007. The Internet Archive case was litigated in 2024.

Again from the opinion:

Although they do not provide empirical data of their own, Publishers assert that they (1) have suffered market harm due to lost eBook licensing fees and (2) will suffer market harm in the future if IA’s practices were to become widespread.

…

We are likewise convinced that “unrestricted and widespread conduct of the sort engaged in by [IA] would result in a substantially adverse impact on the potential market for [the Works in Suit].” Campbell, 510 U.S. at 590 (cleaned up). IA’s Free Digital Library serves as a satisfactory substitute for the original Works. Were we to approve IA’s use of the Works, there would be little reason for consumers or libraries to pay Publishers for content they could access for free on IA’s website. See Warhol I, 11 F.4th at 50. Though Publishers have not provided empirical data to support this observation, we routinely rely on such logical inferences where appropriate in assessing the fourth fair use factor.

I suppose there is “little reason” for me to pay Publishers for a book which I could obtain freely from a library established in 1833, as well?²

Curious that the book publishers in this case can get away with this argument: “Although they do not provide empirical data of their own…” – nice! I wish my career in school and the business world could have been so simple, never needing to provide proof of the things I claim as true.

So anyways, do book authors really find “little motivation to produce new works”? The Second Circuit – a US Federal Court of Appeals, filled with smart people! – certainly seems to think so. It’s a good thing they didn’t attempt to apply the common sense a person on the street would have, as I’ve yet to encounter someone, anyone in my daily life who thinks libraries are killing creation and innovation.