Why are Libraries Trying to Lobby and Litigate Themselves out of Existence?

I always assume that people operate in their own best interest. That’s why the copyright policies the library associations have been pursuing for many years are so baffling to me. If they got everything they have endorsed, authorizing broad unlicensed use of copyrighted works, almost no one would ever need to go to a library.

The Challenge for Libraries

It’s not new that libraries want books and other creative works for as low a price as they can get. That’s true for any consumer of any product or service. Because libraries have traditionally been nonprofit public service institutions promoting knowledge they were given favored status under the Copyright Act. There is a section of the law with a list of exceptions specifically for libraries and archives.

The digital, networked age is a challenge for libraries. People want access to books without leaving their home. For the libraries, it is no longer as simple as buy a book, index it, and put it on the shelf. Today, they need to acquire ebook licenses.

Libraries absolutely hate that publishers offer licenses that limit the number of simultaneous users and/or time-limited accessibility. But this reflects the reality of the technology and the market: unrestricted digital downloads can be transferred from one person to another in ways that would undermine the market for the books.

The age of the used book store of old where frayed, coffee-stained books could be purchased at a discount is largely a thing of the past. Today, “used” digital copies are the exact same thing you would get if you bought it “new” at full price. Publishers can only keep ebook prices reasonable if they have a way to prevent the ones they do sell from displacing too many future sales.

Library Groups’ Policy Efforts

The library groups have fought this tooth and nail. For example, they have lobbied (to date without success) for laws to prohibit publishers from including certain use restrictions in their licenses. They also sought legislation to permit unlicensed use of “orphan works” – works for whom the copyright owner is not known, and to update the library exceptions in Section 108 of the Copyright Act for the digital age.

They have also taken to litigation to achieve their goals. They succeeded in at least one long-running case in which the 2d Circuit Court of Appeals held it was fair use for HathiTrust – a group of college and university libraries – to scan copyrighted books from their physical collections and make the resulting database searchable, all without licenses from the copyright owners. The next year that same court held that it was fair use for a commercial actor, Google, to do the same thing.

Sensing an opportunity to win through fair use rulings what they had to try to negotiate in Congress, the library groups turned against their own orphan works and Section 108 proposals. They now no longer support or even outright oppose such legislation.

The next step in the litigation effort was the “digital library,” an entity founded not as a brick-and-mortar institution to lend books, but as a website that acquired books, scanned them into digital format, then made the entirety of the text available online. The most brazen example was the Internet Archive’s (“IA”) self-declared “National Emergency Library.” IA had scanned a large number of books and was allowing its users to download copies with restrictions on how many people could have access to a book at one time and for how long. This was all without any licenses from copyright owners. When COVID hit, IA lifted all restrictions. They tried to pretend they were doing what any old-fashioned library does, just on the internet. They even carried the façade so far they registered their building as a library under state law in California. As I wrote at the time, they were simply repackaging arguments that had been rejected across the board by the Copyright Office, Congress, and federal courts for years. It was no surprise to me when they lost in court.

What the library groups apparently fail to grasp is that if they achieved all their goals, their function would be completely subsumed by commercial actors. The Google books decision is a perfect example – first a library won the fair use case then Google won. Which site do you think people will go to first to search book text? Now imagine IA had won and anyone could scan books and make the full text available online? Why ever visit a library in person? Come to think of it, why even visit a library website? It will all be on Google or Amazon or one of the other major platforms.

The library associations have even staked out a position on fair use and generative AI, asserting that unlicensed use of copyrighted works as inputs into generative AI models “is generally a fair use….” Why are the libraries taking a public position on this? The issue is at best secondary (and quite possibly contrary to) to their interests. The closest their position paper comes to answering that is the following:

Libraries are particularly interested in GAI’s ability to advance research, education, and creative expression, and to improve the efficiency and effectiveness of libraries. On the other hand, GAI unquestionably has the potential to disrupt many professions – including librarianship.^[1]

Disrupt librarianship? You think?! If the one reason left to go to a library was to seek the assistance of a knowledgeable reference librarian, ChatGPT just crossed that one off the list, too.

Why do libraries keep carrying water for the internet/computer tech industry? It is a peculiar alliance, at least at a philosophical level. The libraries’ complaints frequently reference back to the way things worked in the analog era. Their policy proposals to weaken copyright and mandate broad licensing terms are explicitly designed to allow them to replicate the analog model in the digital, networked environment. The internet platforms, in contrast, define themselves by their desire to break/disrupt the old ways.

Conclusion

If you don’t need to go to a library to search for a book, you don’t need to go to a library to get a book, and you don’t need to go to a library to get research advice, what’s left? It seems to me that libraries’ copyright policies would result in transforming libraries into a mix of community center and daycare facility that happens to have a bunch of books. That may happen anyway as an inevitable result of changes in technology and consumer preferences. Why the libraries seem bent on hastening that result is a mystery to me.

^[1] https://www.librarycopyrightalliance.org/wp-content/uploads/2025/11/GAI-positions_4.0.pdf