Why, in Light of COVID-19, Congress Should Legislate E-book Solutions

Five months into the 2019 novel coronavirus (COVID-19) pandemic, the American Library Association found forty-seven percent of the United States libraries were closed, and did not plan to reopen soon. COVID-19 has diminished or temporarily ended access to over 650 million physical books in communities across the United States. In response, libraries have offered electronic books (e-books) to the public through different models called pretend it is print (PIP), cost per circulation (CPC), and controlled digital lending (CDL). At the beginning of the pandemic, an organization called Internet Archive decided to offer 1.4 million free, unrestricted e-books to the public. As a result, four of the biggest publishers sued Internet Archive in the Southern District of New York. The publishers argue Internet Archive specifically engaged in copyright infringement, but have also launched an attack on the legality of the CDL model. This note argues that the publishers’ lawsuit against Internet Archive ought to make the CDL model illegal, but Congress also ought to intervene to make e-books more similar to physical books in the PIP and CRC model, by reducing publishers’ pricing and reforming e-books’ current restrictions to make them more similar to physical books. Part II provides a brief overview of United States copyright law, culminating in a discussion of topics that relate specifically to e-books: the first sale doctrine, a potential digital first sale doctrine, the rights and limitations copyright holders have today, and the fair use doctrine. While discussing these concepts, Part II will examine how copyright law applies differently to physical books than e-books. Also included in this section will be important case law like Capitol Records, Ltd. Liab. Co. v. ReDigi Inc., since it has implications on the Hachette Book Group, Inc. v. Internet Archive case. Part III will discuss the ongoing battle between libraries and publishers and how the e-book system is currently constructed. This section will discuss the different types of e-book lending models that libraries and publishers engage in, including the costs and restrictions associated with each model, and why publishers believe e-book lending by libraries unfairly takes away some of publishers’ profits. This section will also address how COVID-19 has impacted libraries and publishers. Part III ends by inspecting the facts around the Internet Archive case, including the controversial model Internet Archive operates in, known as CDL. Part IV will apply copyright law to the facts of Internet Archive. Part IV will conclude Internet Archive engaged in copyright infringement, and its use is not protected by the fair use doctrine. After discussing Internet Archive specifically, Part IV will turn its focus to the model Internet Archive operates in, known as CDL. This part will conclude the model as a whole constitutes copyright infringement, and its use is also not protected by the fair use doctrine. Thus, I will argue the publishers should, and will, prevail on their copyright infringement claim. After predicting the publishers will prevail in their lawsuit against Internet Archive, Part V will discuss solutions to make the remaining models, PIP and CPC, better. I will argue Congress should intervene to regulate the structure of e-book licenses to imitate physical books. However, these solutions are not meant to supplant the technology restrictions already in place by publishers and libraries to prevent piracy, in particular digital rights management (DRM) technology, and the one book, one user limitation. Congress should set e-book licenses to expire based on what type of book the physical version is, mandate the use of advanced technology to limit e-books’ accessibility, and provide that the first sale doctrine does not to apply to digital copyrighted works. By having Congress intervene to make e-books more like physical books, the hope is that publishers will recognize how e-books are similar to physical books, and lower the prices publishers charge libraries for e-books. This would create a more equitable e-book lending market where libraries are able to circulate more e-books through a lower cost, and publishers can to continue to profit off of their works.