Who really threatens our access to books?

In May 2022 the Youtube account of publishing monopoly Penguin Random House made available a video titled "The Unburnable Book,"[1] advertising a special copy, printed on aluminum foil, of the novel The Handmaid's Tale, to be auctioned for charity through Sotheby's. The novel, first published in 1985, had returned to "best-seller" lists in early 2017 ahead of the premiere of a television series adapting it, during a wave of interest in speculative literary depictions of future authoritarian governments in western countries, a phenomenon widely attributed to media coverage of the new Trump presidency[2] -- George Orwell's Nineteen Eighty-Four entered Amazon.com's best-seller list in January of that year, and I recall the Los Angeles Public Library at the time acquiring dozens of additional copies of Sinclair Lewis' It Can't Happen Here to meet demand.

The video begins with sounds of crackling that suggest fire and a voice that sounds like it was sampled from a news broadcast saying "let's talk about this new book banning craze" amid a collage of other such voices. White text fades in over the dark background: "This year, hundreds of books have been banned and some have even been burned," followed by images of a pile of actual books on fire in a scene which appears to have been staged for this video. More text appears on screen: "So we created a limited edition of a book that's been banned for years." The book's author, eighty-two years old, appears with heatproof mitts, seeming to point an assault rifle-shaped device that projects blue fire toward "the unburnable book" positioned between herself and the camera.

The book sold for $130,000 two weeks after the video was published; its listing on the Sotheby's web site,[3] which details precise temperature specifications for all the materials of which the book is constructed, informs us the auction is intended "To raise awareness about the proliferating book banning and educational gag orders in American schools nationwide, and to raise money to support PEN America’s crucial work to counter this national crisis of censorship"; toward this end, it says, "Margaret Atwood and Penguin Random House have partnered with the creative agency Rethink." "Creative agency" in this context is a euphemism to describe an advertising firm, so there is little pretense that the real aim of this stunt isn't to stimulate book sales. Sotheby's links to a page on the PEN America web site[4] that makes reference to a history of school library book bans in the United States, telling us that more than 1100 titles have been "banned" between July 2021 and March 2022.

But what are these "bans" and what power do they have to actually keep children from reading a given book when virtually all children in the United States have access to the Internet?[5] "Burned" books are destroyed, and one no longer has access to them; what they contained is lost. Digital systems, on the other hand, depend on the infinite reproducibility of data: Working with digital files is always a matter of copying them from one location to another, either within a machine's internal memory or from one machine to another. Viewing any web page, for instance, requires downloading a copy of it from a server onto whatever device displays it. The ubiquity of these systems makes the kind of local censorship we call "book banning," the removal of physical copies of a book from a given physical place, trivially easy to overcome for anyone with access to the open Internet: One can simply download a copy of the "banned" book.

Millions of books, most of which are long out of print and otherwise not available, are freely viewable through various web sites, to say nothing of online book sales. Long, long gone are the days when consulting card catalogues might have been a curious student's first step in finding out about something. It seems that in the present century these school "book bans" have no greater power to keep books out of curious readers' hands than any old library vandal who might hide or damage any given book on any given shelf. In a world dominated by digital distribution such acts can be no more than symbolic, a kind of "virtue signaling" for the politicians who enact them.

Internet access plays an expanding and potentially far greater role in exposing children to ideas and information about the world, even to specific books, than whatever happens to be in the inventory of their local school's library. None of this is to dismiss the value of libraries as institutions in children's lives or the danger of bigots' small-minded attempts to force the removal of books from them -- we have a clear interest in condemning such acts for the benefit of the open and supposedly democratically-oriented societies we enjoy -- but only that the potential censoring effect of this kind of activism, the removal of physical copies of books from small public holdings, seems to be overblown. It seems especially extreme to call it "burning," an image associated in popular culture with a descent toward totalitarianism, especially Nazis (at the time of writing two of the first three images that appear on Wikipedia's page titled "book burning" depict Nazis): Caesar at Alexandria, Indiana Jones in Berlin, Ray Bradbury's Fahrenheit 451, always as an image of intolerable political conditions, of a cultural dark age, when today people have greater access to books than anybody that ever lived.

In fact, far from limiting access to these supposedly "burned" books, the kind of censorship to which the current "book burning" phenomenon refers and the attention it's received from news media has been a boon to book sales. In January 2022 newspapers and television programs reported that Maus, a novel in comic book format, had been "banned" by unanimous vote of the ten-person school board of McMinn County, Tennessee.[6] Some outlets ran articles speculating that this was part of an attempt to avoid teaching about the persecution of the Jews in Europe during the Second World War (represented within the novel through its author's attempt to cope with imagining his parents' experience there), that the school board's actions might amount even to "Holocaust denial."[7] Within days of the school board meeting it was reported that sales of the book had skyrocketed.[8]

It turns out "banning" might even be an exaggeration: The minutes of the school board deliberation, freely available online,[9] provide a detailed account of what actions the board actually took. Though the board initially proposes trying to censor by physically altering those parts of the school district's copies of the book that are deemed to be inappropriate for the curriculum (including "nudity" and "vulgar language" -- "eight words and one picture," as a more skeptical board member puts it), an individual identified by the school board director as "our attorney" objects to this course of action on the grounds of intellectual property, speculating about fair use and the existence of "a lot of people suing school districts for copyright violations." Strangely, no news coverage I could find actually printed the image that was objected to.

The question was never whether to teach about the murder of the European Jews but whether the comic book Maus had too much in it to which parents might object, all of which was secondary to the novel's educational purpose, to be worth including in a specific middle school curriculum. During the meeting, board member Tony Allman is recorded as having said "We aren't against teaching the Holocaust," agreeing with an individual identified only as "teacher from McMinn High School" who claims "I love the Holocaust." The widely reported-on motion was actually "that we remove this book from the reading series and challenge our instructional staff to come with an alternative method of teaching the Holocaust." In any event, sales stimulated by the incident's media coverage have propagated the novel much further than it would have been had the school board of this tiny (population less than 54,000 people) Tennessee county not "banned" it. Companies have even sponsored donation drives to send copies of the book to Tennesseans free of charge.[10]

When web resources are included, it seems unlikely that anybody in Tennessee who wanted to read Maus was ever at risk of not being able to. So if, in the Internet age, these local governing bodies have less power to keep books from the hands of their constituents than these exaggerated claims suggest, what stake does Penguin have in seeming to challenge them, in taking a stand against this and representing it as something as extreme as "book burning"? Incidentally, Maus happens to be published by Pantheon, a division of Penguin Random House.

Over the month following the Sotheby's auction, a judge for the federal court in New York granted separate motions for summary judgment brought by both the plaintiffs and defendant in a lawsuit that had been filed two years previously by Penguin Random House along with the Hachette Book Group, Harper-Collins, and John Wiley & Sons against the Internet Archive over its program of making available to users the scans of physical books it hosts.[11]

The Internet Archive, a nonprofit organization best known for its "Wayback Machine" archive of web pages, has a program whereby it assists libraries in making scans of their holdings and then hosts these scans on its web site.[12] Books viewable through the site that are out of copyright in the United States can be browsed freely, while others can be "borrowed" by those with an account on the site, allowing one to browse the scans for an hour at a time if nobody else is currently viewing them. Since this represents parts of the holdings of various libraries around the world, most of the available books are obscure and long out of print, unlikely to ever see a new edition, books one's local library or used book seller will never have; the copies available on the Internet Archive are likely to be the only means the average person has of viewing them. Most of the books available on Project Gutenberg, a well-known and widely celebrated resource for downloading books that are out of copyright, depend on images made available by the Internet Archive through this program.

The industry's position is summed up by the mission statement of the Association of American Publishers, from text printed in the footer of their web site, publishers.org: "advocating for outcomes that incentivize the publication of creative expression." The argument seems to be that allowing providers like the Internet Archive to continue to host scans of books and make them accessible to their users would then "disincentivize" the dissemination of "creative expression." But this argument is disingenuous: Wouldn't the cause of "creative expression" benefit from more outlets where such expression can be freely shared? The publishing industry wants us to believe that the profit motive is the only force that drives the distribution of literature, which would be sad if true, but clearly isn't. It may be the only force motivating monopolies like Penguin, which had a critical role to play in the dissemination of such texts in an age when the technologies of mass publication and distribution were inaccessibly expensive, but today anybody with a computer and an Internet connection can copy and transmit any text infinitely. Who needs the old publishing monopolies anymore?

The plaintiffs in the lawsuit, as stated in the original complaint, seek an extraordinary payout from the Internet Archive, demanding that it pay "statutory damages in an amount based upon Internet Archive's willful acts of infringement" in an amount "with respect to each work infringed" (that is, each book that was scanned) as well as that "all unlawful copies be destroyed."[13] The publishers' financial interest in making it impossible to find copies of their books without buying them new is obvious but, surprisingly, the complaint also alleges the Internet Archive has "an obvious and direct financial interest in the infringement" too, claiming that "The uploading and downloading of increasing numbers of copyrighted works ... enhances the reputation of" the Internet Archive, leading to "more donations of funds." In this way they can paint the Internet Archive as a competitor unlawfully undercutting them with their own product.

If these companies' primary obligation was to the potential readers of the texts they publish, the Internet Archive would be embraced. But they instead act exclusively in the interest of their shareholders, whose expectation of a return on their investments requires the extraction of ever-increasing profit. The purported concern about "book burning" is not genuine advocacy for free expression but expedient posturing in the service of this profit. Any illusion of a political stance melts away in the face of potential loss of sales: The television adaptation of The Handmaid's Tale mentioned above airs through Internet streaming service Hulu (majority-owned by another media monopoly, the Walt Disney Company), which was reported to have banned political ads challenging abortion bans for fear of offending those viewers who support them.[14] (Unlike with broadcast television, Internet streaming services like Hulu are not required to host political speech.)

It seems that today, when nearly everybody on Earth has access to technologies for the infinite copying and transmission of texts and other media, only those forces which seek to limit such functionality truly threaten people's access to them. In the kind of open society we enjoy in those countries without direct Internet censorship, it's only in copyright that such battles are fought. The removal of the book borrowing feature from the Internet Archive would be a loss for the state of free access to information; being made to pay damages large enough to take it offline would truly herald a new dark age, a setback unlike anything yet known in the digital era (in addition to everything mentioned above, Wikipedia depends on the Wayback Machine for articles' references to archived pages that may no longer be hosted in their original locations).

When a company like Penguin Random House opposes so-called "book burning," they do so not in support of readers' access to texts that the authority figures in their lives might find controversial, but only to shore up their own ability to extract profit from such material wherever possible by, for example, forcing readers into channels that allow allow it the largest cut amid the sea of potential middlemen, even if that means actually restricting most people's access to them. In those countries where such books are sold, the biggest force for book censorship emerges as the publishers themselves, demanding the burning of every copy of every book they haven't profited from as well as the damning of those outlets which have enabled their distribution, which also harms people in places with direct censorship by limiting their ability to find copies of books that might be forbidden from sale in where they live. The biggest book burner is Penguin Random House -- they even did it for their own video. If they succeed in their suit against the Internet Archive, the coalition of publishers which brought it may well go down as the biggest book burners in history.

Postscript, as of March 2023:

As I write, news has just broken that the judge in the Internet Archive lawsuit has ruled that its method of digital lending does constitute copyright infringement.[15] During oral arguments Judge John G. Koeltl had already suggested that "To say that this case is about the ability of a library to lend a book that it owns ignores whether the library has a right to copy wholesale the book,"[16] and his decision accepts that publishers do not sell electronic copies of books to those who purchase them but rather grant the purchaser an exclusive license to the text; he observes that American libraries which lend electronic materials must do so through third parties which enforce "digital rights management" software restrictions on the lent material,[17] which ensures that people who borrow and download such electronic text cannot easily copy it further, often (as Kindle or Apple Books users may have observed) to the point of restricting users' ability to copy and paste even small passages' worth, an overly-cautious approach that limits the utility of ebooks in general; Koeltl notes that while some publishers offer perpetual licenses to libraries, the largest, including Penguin and Hachette, license ebooks for periods of only one or two years, after which libraries must buy them again.

It seems this novel practice, which might have been threatened by the Internet Archive's lending model, is what the lawsuit was intended to defend: That is, publishers' right to charge libraries over and over again to lend out the same material. I will also observe here that there is no question these publishers ought to be considered monopolies, as I wrote above; in November of last year a different U. S. court blocked Penguin from acquiring its rival Simon & Schuster on antitrust grounds.

The Internet Archive's users could not freely download the copyrighted works it lent out, only view images of them through a web browser. If, as the judgment suggests, legal digital libraries are impossible without complete subjection to whatever the publishing monopolies can get away with regarding extortionate licensing models and enforcement of DRM, then sites which allow visitors to download illicit copies of books are more necessary than ever. Since this essay first went online the Z-Library was taken down by the U. S. government and has since once again become accessible, in addition to several new mirrors from which people can download its holdings, such as "Anna's Archive."[18]

I worried, in this current climate of heated culture war, that I'd be misunderstood: My point was never to suggest we excuse, downplay, or tolerate school book bans, which have only increased in intensity since I wrote the text above amid the leverage of so-called "parental choice" as a right-wing talking point in American politics, and of which the sensationalized McMinn case was always a poor example. My intention was to emphasize who is really "burning" books: It's a powerful image misused by publishing monopolies to deflect from their own leading position in "book burning." Suing to take down web sites which have distributed unauthorized copies limits potential readers' access to books far worse than the kind of small-scale local censorship behind these big headlines.

In fact the publishers are not opposed to book burning: That is their goal. The weaponization of the image of "book burning" in Penguin's Margaret Atwood advertisement, which occasioned this essay, is intended to capitalize on a justified public concern about right-wing opposition to and attempts to limit individuals' ability to access written works and learn more about the world, an end the publishers themselves are also working toward.

Though Judge Koeltl found that the Internet Archive's practices interfered with the publishers' ability to pursue their ebook licensing model ("supplants the Publishers' place in this market"), the overwhelming majority of books hosted by the Internet Archive are not easily available for purchase elsewhere and will never be reissued; as noted in Koeltl's judgment, fewer than one per cent of those works that remain subject to copyright which the Internet Archive distributes are controlled by the publishers who brought the lawsuit, though together they control the entire market for "best-selling" books. As books from the 1920s are only just entering the public domain in the United States, this decision threatens to wipe a century's worth of digitized books off the web, not to mention those public domain works that the Internet Archive is the primary resource for if the damages levied against it force it to shut down. Whether this becomes the digital Library of Alexandria moment remains to be seen, but the kind of pernicious copyright enforcement which led to this lawsuit must be considered an ill omen for the so-called "marketplace of ideas" and a boon for the kind of censorship and intolerance the publishers otherwise claim to stand against.

While the text above refrains from actually encouraging anyone to make unauthorized copies of copyrighted books, I hoped to suggest that doing so is both difficult to avoid and desirable to facilitate: It's an essential part of how computers work. Any attempt to restrict this is barbarism of the same order as breaking a printing-press because it could be used to libel, restricting the use of the technology we depend on for most of our communication in order to protect a handful of companies' ability to extract further profit from an industry in which they are already in complete control. Anyone who genuinely opposes book burning must see this is unsustainable.

External links to sources referred to above:

[1] "The Unburnable Book." [Youtube]

[2] See, e.g., "Margaret Atwood's 'The Handmaid's Tale' Soars To Top Of Amazon Bestseller List," National Public Radio February 7, 2017; "Margaret Atwood: The Handmaid's Tale sales boosted by fear of Trump," The Guardian February 11, 2017

[3] "The Unburnable Book." [Sotheby's]

[4] "Banned in the USA: Rising school book bans threaten free expression and students' first amendment rights," PEN America April 2022

[5] See U.S. Department of Education report "Children's Internet Access at Home," May 2021

[6] See, e.g., "Tennessee school board bans Holocaust graphic novel ‘Maus’ – author Art Spiegelman condemns the move as 'Orwellian'," CNBC January 26, 2022; "School Board in Tennessee bans Teaching of Holocaust Novel 'Maus'," New York Times January 27, 2022; "Holocaust novel 'Maus' banned in Tennessee school district," PBS News Hour January 27, 2022

[7] See, e.g., "There's a Simple Reason That Demands to 'Ban' Books Like Maus Are Soaring," Slate January 31, 2022; "The real reason some people are so afraid of 'Maus'," CNN January 27, 2022

[8] See, e.g., "Holocaust book Maus hits bestseller list after Tennessee school board ban," The Guardian January 31, 2022; "Banned by Tennessee School Board, ‘Maus’ Soars to the Top of Bestseller Charts," Smithsonian Magazine February 2, 2022; "The Fight Over 'Maus' Is Part of a Bigger Cultural Battle in Tennessee," New York Times March 4, 2022; "'Maus' ban makes Art Spiegelman’s Holocaust graphic novel an Amazon bestseller," Los Angeles Times January 31, 2022

[9] "McMinn County Board of Education Called Meeting January 10, 2022, 5:30 p.m." [PDF]

[10] See, e.g., "After a Tennessee school board banned 'Maus,' a California comic book store is donating copies," Los Angeles Times February 16, 2022

[11] See, e.g., "Book publishers, Internet Archive ask court to decide ebook-lending fight," Reuters July 8, 2022; "Publishers, Internet Archive File Dueling Summary Judgment Motions in Scan Suit," Publishers Weekly July 8, 2022

[12] See the page "Digitizing Print Collections with the Internet Archive" on the Internet Archive web site.

[13] See the original complaint, "Hachette Book Group, Inc., HarperCollins Publishers LLC, John Wiley & Sons, Inc., and Penguin Random House LLC, Plaintiffs, against Internet Archive and Does 1 through 5, inclusive, Defendants," June 1, 2020

[14] "Democrats fume at Disney’s Hulu for blocking ads on abortion, guns," Washington Post July 25, 2022

[15] "The Fight Continues," Internet Archive March 25, 2023

[16] "Judge Appears Skeptical of Internet Archive’s Scanning and Lending Program," Publishers Weekly March 20, 2023

[17] Judge John G. Koeltl, "Opinion & Order: Hachette Book Group, Inc., et al., plaintiffs, against Internet Archive, et al., defendants," United States District Court, Southern District of New York March 24, 2023. Note that this judgment errs in claiming the Internet Archive allows anyone with an account to download PDFs of the books it lends out; such functionality is restricted to users with certain disabilities.

[18] See, e. g., Z-lib, Anna's Archive.

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