Reimagining Digital Libraries
Public libraries are among the most cherished institutions in our society, and most Americans use and love them. However, many are unaware of the crisis that libraries face nowadays. The gradual shift towards digital distribution of copyrighted goods, a trend greatly accelerated by the COVID-19 pandemic, challenges both the role and operation of libraries in our society.
Specifically, libraries face a difficult digital lending problem. While in the realm of printed works, libraries operate in the shadow of well-established exemptions from copyright liability, those exemptions do not apply in the same way in the digital world. As a result, libraries secure specific licenses from the publishers to acquire and lend digital content. This development has left libraries at the mercy of publishers and their restrictive and expensive licenses, which drain libraries’ resources, shrink their catalogs, and hamper their ability to fulfill their mission. Changes in the post-COVID world, including various proposed state statutes and a recent important case, Hachette Book Group, Inc. v. Internet Archive, put the issue front and center.
So far, courts have failed to appreciate the unique role libraries play in our society and the need to partly shield them from market forces. At the same time, legal scholars have largely ignored this crisis, leaving libraries to fend for themselves.
This Article seeks to begin closing this surprising gap in legal literature by analyzing the digital lending problem from legal, comparative, and economic and social justice perspectives. It explains why it is highly problematic to let libraries—which have always operated alongside the market—be completely subject to the publishers’ powerful commercial interests. The Article instead offers several alternative frameworks to balance libraries’ role in providing access to knowledge with the publishers’ role in supporting the creation of new works. While some of them require federal legislation, many do not and can be implemented by state and local governments or even by libraries themselves. Copyright law and copyright markets have always evolved in response to new technologies. They now need to adapt to address libraries’ crisis and their role and needs in our growingly digitized world.
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