In the media and on social media, there has been a growing number of concerned reports about AI companies that are buying up used books in large quantities and in a rather ominous manner. It is speculated that the large quantities of books acquired in this way are scanned, used for AI training, and irretrievably destroyed in the process. It is often suggested that copyright law is the reason why the books are being destroyed. Can this assumption be substantiated?

The Destructive Scanning of Books

The retro-digitization (usually referred to simply as “digitization”) of books is typically carried out using scanning technology. Modern book scanners are capable of scanning books non-destructively. However, non-destructive scanning of books is a complex process, as irregularities caused by the book’s binding must be compensated for during the scanning process.

In contrast, in so-called destructive scanning, the book’s binding is mechanically removed. This turns a book into a loose collection of pages that can be conveniently digitized using a sheet-fed scanner. Once the scanning process is complete, the book pages are then disposed of as waste paper.

Why Antiquarian Bookstores Are Important for AI Training

Digital data sources, such as web archives, have long been incorporated into the training of current AI models. The digitization of printed books is now the next stage in data acquisition. According to observers, tech companies are particularly focused on non-fiction books published between the 1970s and the 1990s.

These books are likely to be of interest for three reasons: First, nonfiction books are valuable for AI training because of their content; they contain factual information that is still largely accurate and is integrated into linguistically sophisticated patterns of argumentation. Second, book titles published before the mid-1990s were generally released exclusively as print editions and have not been digitized since. Third, books from the period in question are still predominantly subject to copyright, which expires only 70 years after the author’s death in both Germany and the U.S.

Obtaining scans of these books from dubious third-party sources would be illegal. Therefore, from a copyright perspective, the purchased print editions of these books are particularly valuable to the companies.

Technical Reasons for Destructive Scanning

But why do AI companies accept the destruction of the books during the scanning process?

First, technical aspects play a significant role in large-scale retro-digitization of books: As explained at the outset, destructive scanning is simpler, faster, and therefore more cost-effective. Although the AI industry appears economically strong, observers interpret the decision to use the most cost-effective digitization method as an indication of cost pressure in this “highly competitive industry.”

Competitive considerations may also play a role, because while the books in question are not particularly old or unique, many of them are nevertheless rarely available on the antiquarian book market due to low print runs and scarcity. Whoever buys them first effectively removes them from the competition’s reach, thereby gaining a small advantage for their AI model.

Destructive Scanning Out of Concern for Copyright?

A lawsuit between three plaintiff authors and the AI company Anthropic before the United States District Court for the Northern District of California (Bartz v. Anthropic) established a legal precedent regarding destructive book scanning in 2025.

The central question here was whether destructive scanning, on the one hand, and the training of AI models using the content of acquired digitized books, on the other, fall under the so-called “fair use principle.”

The two central questions to be decided by the court must be considered separately:

First, whether training AI models with the content of purchased digitized books is protected by the fair use doctrine.

Second, whether destructive scanning constitutes a copyright-relevant copy of a work.

According to Judge William Alsup, training AI models using the content of purchased digitized books was “transformative in the truest sense of the word” and therefore protected by the fair use doctrine. Destructive scanning should be classified as “replacement scanning,” in which a printed work is replaced by a digital work. This conversion of a purchased printed book into a digital book was classified by the court as a “format change” rather than a copy and is therefore also covered by fair use.

A Landmark Ruling with Significant Implications

The rule on format conversion—also known as the “format-shifting rationale”—thus promises, according to this landmark ruling, a certain degree of legal certainty for AI companies that destroy the books they have acquired for AI training through destructive scanning. The method that is more efficient from a technical standpoint is therefore also the more legally advisable one.

However, it is a fallacy to assume that the court’s ruling requires AI companies to destroy the digitized books. The lawsuit merely examined the specific digitization process as applied by Anthropic as part of “Project Panama”—and classified it as fair use.

E-books Instead of Print Books?

If e-books were used for training instead of their printed counterparts, the time-consuming step of scanning—and the associated issues of transportation, storage, and reuse—would be eliminated.

However, e-books can only become training data for AI models in two ways: the legal way—that is, with the involvement of the rights holders of those e-books—or by training with pirated copies. For AI companies, the legal route entails a significantly higher “legal/practice/business slog” (quote from Anthropic co-founder and CEO Dario Amodei).

Training AI with pirated copies of e-books is not covered by fair use and thus constitutes a clear copyright infringement, Judge Alsup ruled.

Fears of ‘Fahrenheit 451’ Scenarios

Reports of AI companies purchasing large quantities of books from used bookstores have sparked, in some cases, fierce reactions in the media. The media discussion often references Ray Bradbury’s novel *Fahrenheit 451*, a dystopia in which books are banned.

A closer look at the relevant court ruling in this specific case reveals that there is no legal obligation to destroy retro-digitized books. Economic reasons for choosing the most cost-effective digitization method therefore appear to be the decisive factor when the AI industry employs destructive book scanning. Against the backdrop of the actions taken by major AI companies, calls for open-source AI models are currently growing louder, and with regard to the retro-digitization of books, there are also increasing calls for “an open-source initiative or a similar nonprofit project.”

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The Federal Constitutional Court ruled that there is no obligation under state law to republish. These are the reasons and background to the ruling, and these questions remain unanswered.

Following 12 years of legal proceedings, on 24 March 2026 the Federal Constitutional Court ruled that the state of Baden-Württemberg could not impose a statutory obligation on academic staff to republish their work. This decision has not only direct implications for university statutes based on state legislation. It also raises further questions concerning the position of Open Access as a supposed antagonist to copyright. This article summarises the background to the decision, its content and the outstanding issues.

The requirement for secondary publication as set out by Baden-Württemberg

In the spring of 2014, the state of Baden-Württemberg introduced Section 44(6) of the State Higher Education Act (LHG BW). This required universities to oblige their staff and students to re-publish their academic works one year after their initial publication. The state’s idea of creating a re-publication requirement has its origins in Section 38(4) of the Copyright Act (UrhG). Under certain circumstances, this allows authors of an academic article to make the manuscript version publicly available after twelve months, even if they have transferred the exclusive right of use to the original publishing body. The UrhG thus supports open access initiatives in academia. The University of Konstanz complied with the requirement to establish a secondary publication obligation in its statute.

The background to the decision: the legal dispute before the Administrative Court

Some professors raised objections to the provisions in the Higher Education Act of Baden-Württemberg (LHG BW) and the statute. They challenged the statute before the Administrative Court. They argued that the obligation to republish constituted an impermissible interference with the fundamental right to academic freedom under Article 5(3) of the constitutional law.

The legal counsel for the University of Konstanz argued against this and in favour of the statute and the Baden-Württemberg law: the university had not infringed any copyright, but had merely regulated the exercise of the right to secondary publication under the Copyright Act for those in its employ. The provision did not concern the free accessibility of copyright-protected works, but rather the information in the public domain contained therein. On the basis of this argument, the legal counsel for the University of Konstanz saw no issue with an encroachment on the federal government’s legislative competence, as the provision did not concern copyright law in the strict sense.
>The Administrative Court stayed the proceedings and referred the matter to the Federal Constitutional Court for a specific review of the provision.

The Second Senate of the Federal Constitutional Court then had to answer the formal question: Did the State of Baden-Württemberg even have the legislative competence to enact a provision stipulating an obligation to republish?

The Federal Constitutional Court on the secondary obligation to republish

The Federal Constitutional Court has now ruled in its decision: No, the State of Baden-Württemberg should not have enacted such a provision, as the regulation of an obligation to republish concerns the field of copyright and may therefore only be governed by federal law.
The Court regards the Baden-Württemberg provision – unlike the legal representative of the University of Konstanz – as a copyright provision, because the obligation to republish set out in Section 44(6) of the Higher Education Act of Baden-Württemberg (LHG BW) governs the exercise of the copyright right to republish and replaces the freedom of choice afforded to authors by that right with an obligation.
According to the court, this substantive effect of the law was decisive in classifying the Baden-Württemberg provision as a copyright provision.

These questions remain unanswered

It remains unclear whether the provision unlawfully interferes with the fundamental right to academic freedom under Article 5(3) of the constitutional law. This fundamental right also encompasses freedom of publication – that is, the right to determine the framework conditions, such as the journal, timing and publisher, and also to decide against publishing one’s own academic findings. The Federal Constitutional Court did not reach a decision on this question in its ruling; the review ended after the formal constitutionality of the provision was rejected.
Nor did the Federal Constitutional Court rule on the consequences of the unconstitutionality of the Baden-Württemberg provision for the University of Konstanz’s statute. Whilst statutes are not formal laws, they nevertheless have normative, i.e. law-like, effects. Furthermore, statutes must, of course, not contain any provisions that are unconstitutional. Consequently, the provision in the statutes concerning the obligation to republish is also likely to be null and void.

Consequences for Open Access Policies and Related Matters

The Federal Constitutional Court’s rejection of a provision under state law governing publication under copyright law could lead to calls for the matter to be regulated under federal law. This is, however, difficult, as legislative competence for professional requirements relating to academic staff lies with the federal states pursuant to Article 70(1) of the constitutional law. This highlights the general regulatory problem in areas that concern both academia and copyright law.

The presumed implications for the University of Konstanz’s statutes also raise the question of whether the consequences of the Federal Constitutional Court’s decision must also be applied to open access policies. Here, perhaps, a cautious reassurance: open access policies are likely to remain compatible with the law and the constitution. This is because a policy, in terms of its legal binding force, must be distinguished from a statute. Unlike statutes, policies typically contain only recommendations, guidelines or standards. They are therefore – subject to possible individual cases – not legally binding in the same way as a statute.

Implications for open access clauses in employment contracts?

In practice, it may also happen that open access issues are regulated in an employment contract. In this regard, there are at least no concerns regarding the employer’s authority to regulate copyright matters within an employment contract – this is standard practice. An interesting and as yet unresolved question, however, is whether an employer can contractually oblige an author to republish their work in open access. This gives rise to the potential for a conflict between the provision in the employment contract and the right to secondary publication under Section 38(4) of the German Copyright Act (UrhG). This is because the author’s right to secondary publication may not be waived to their detriment. Admittedly, an obligation to publish a work in Open Access does not constitute a classic negative derogation from the right to secondary publication. Ultimately, however, an obligation to republish does have effects that could affect the exercise of the right to republish. It remains to be seen whether these and other questions regarding the right to republish will be clarified by the courts in future.

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The software that powered the early Web was developed at a research institute in Switzerland. Instead of commercializing it, the developers made it freely available and eventually even released it into the public domain. Luckily—who knows how the history of the Web would have unfolded otherwise?

In the beginning, it was all about information management

When, in the late 1980s, physicist and computer scientist Tim Berners-Lee made several proposals to his superiors at CERN (the European Organization for Nuclear Research), no one could have predicted what would come of it.

His core idea: an alternative to hierarchical information systems through a network-like structure of interconnected notes. This concept became the blueprint for the World Wide Web.

The openness of the World Wide Web as a goal from the very beginning

On November 12, 1990, Tim Berners-Lee and his colleague Robert Cailliau jointly published a memorandum titled: “WorldWideWeb: Proposal for a HyperText Project.” This memorandum was an important milestone on the path to the creation of the World Wide Web.

The concept of free access to the “WorldWideWeb” was already present at this point. This is because one of the project’s goals, as defined in the memorandum, was “to use public domain software wherever possible, or interface to proprietary systems which already exist.”

However, some time would pass before public-domain software became a reality, as the Web was still little more than a very exciting idea. The software required for the Web was subsequently developed by a small team at CERN.

This was the core Web software, which was compiled into a software library consisting of individual program components. These software building blocks were intended to enable external programmers to develop their own projects for the Web, whether browsers, servers, or other applications.

The Path to Open Access to the World Wide Web

The question that now arose was how to make this software, developed at CERN, accessible. Should it be sold to interested web pioneers for a fee, or should it be made available for free?

It took Tim Berners-Lee some persuasion to convince his superiors at CERN to make the developed software freely available. His colleague Robert Cailliau later described it in his book „How the Web Was born“: Berners-Lee argued that the World Wide Web followed an academic tradition because it promoted the free exchange of information. Therefore, he argued, the software necessary for the Web should also be made available free of charge.

In turn, CERN management circulated a cost estimate that was to serve as the price for the software. It amounted to a price range between 100 and 200 Swiss francs per software package.

However, a look at the very early Web at that time gave management a reality check regarding the proposed price. The small number of Web users at the time made it seem to CERN that charging fees for the software would not cover the costs. The administrative burden was simply considered too high.

“Collaborators welcome!”

And so it came to pass that Tim Berners-Lee received permission from CERN to make the Web software developed there available for free use on the Internet. On August 6, 1991, he announced via the alt.hypertext newsgroup that the software was available for download on the CERN website. He accompanied this with the call, “Collaborators welcome!”

The CERN website, located at Info.cern.ch, became an important resource on the early Web from that point on. There, users could download the software from an FTP server, which allowed the Web to gradually expand. This software included a library of program code (known as CERNLIB), software for running a server, as well as for the client. Shortly thereafter, the first web server outside of Europe went online. It was located at Stanford University in the United States, and the rest is history.

Public Domain as the Starting Point for the World Wide Web’s Triumph

Once the World Wide Web had gained momentum in 1993, Tim Berners-Lee and Robert Cailiau finally succeeded in convincing their superiors at CERN to make the software for the Web available to the public as public domain. In a statement dated April 30, 1993, CERN waived all of its intellectual property rights to the Web code, including both the source code and the binary files. It granted everyone permission to use, reproduce, modify, and distribute the code.

In the “World-Wide Web News,” a monthly newsletter from CERN, the May 1993 issue reported:

„CERN W3 Software Goes Public Domain

After much discussion, CERN has now released a certain subset of the W3 software as public domain code. This was done in order to further the spread of the web, and to ensure that the protocols were used in a consistent way. There had been a danger of developers having to all re-invent the protocol code, and remake incompatible mistakes. Now the „libwww“ code library which forms the basis of many of the browsers is in the public domain, this can serve as a common basis.”

It Almost Became GNU

Incidentally, Tim Berners-Lee had originally considered releasing the Web software not as public domain, but under a GNU license. Relations between CERN and the Free Software Foundation (FSF) with its GNU Project were good.

However, CERN was concerned that large IT companies might ignore the Web if there were any risk of licensing issues. Thus, the decision was made to make the software openly available in the public domain. This gave programmers around the globe maximum freedom to use CERN’s software for their projects.

Open Software as the Key to Creativity and Collaboration

Looking back, Tim Berners-Lee stated in 2025 in The Guardian that his vision for the Web was based on “sharing, not exploitation.” His goal, he said, was to use the Web to create a space for creativity and collaboration.

To achieve this, he noted, it was necessary for all interested parties to have low-barrier access to the Web and to be willing to contribute their ideas and skills. He saw this as the central challenge. It would therefore have been impossible to require interested users to “pay for each search or upload”.

Free software as the key to a collaborative and creative webosphere sounds familiar. Anyone looking for visions of the web of the future today is welcome to draw inspiration from the web’s early days.

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