Europe Has the Law. America Has the Shredders.

A coda to Donate the Scan. Except You Can’t.

The previous note argued that American copyright law traps AI companies into destroying books: the fair-use defense that makes scanning legal requires the scans never to leave the building, so the good deed of donating them is legally fatal. Three fixes followed, all shaped to fit inside US law, because that is where the shredders are.

A European reader might reasonably ask why US law gets to decide the fate of books bought in Northumberland. Fair question. Here is the strange answer: Europe already built nearly every legal tool this problem needs, and none of them can reach it.

Start with the cultural gap, because it explains the legal one. In America, destroying a purchased book is a property decision, no more charged than scrapping a car. In Europe, book destruction is not a supply-chain story. It sits in living memory next to bonfires, and the institutions built in reaction to them: national libraries with legal deposit mandates, cultural heritage law, a continent-wide instinct that books are held in trust even when privately owned. European copyright law grew out of that instinct, and it shows.

So the EU’s Copyright Directive contains, already on the books, a preservation exception letting cultural heritage institutions copy works in their collections for safekeeping. It contains text-and-data-mining exceptions, one for research institutions that rightsholders cannot override, one for commercial use that they can opt out of. It contains an entire regime for out-of-commerce works, the exact category the shredders are eating: collective licensing that lets libraries digitize and share books no longer sold anywhere, with a public EU-wide portal for rightsholders to object. The United States has no orphan-works law at all; a library hosting one uncleared scan risks statutory damages of $150,000 per work. Europe solved that problem on paper years ago.

And it does not matter, because the books ship west. The companies are American, the scanning happens under US jurisdiction, and the trap closes on both sides of the Atlantic at once. An American lab cannot donate its scans to a European library: the transfer is an unauthorized distribution under US law the moment the file leaves the building, and the receiving library cannot lawfully accept it either, since the EU’s preservation exception covers works in an institution’s own permanent collection, not ad-hoc deliveries from a foreign corporation, and European courts have held that copyright exceptions cannot launder copies from unlawful sources. Europe has the tools and none of the shredders. America has all the shredders and none of the tools.

That would be the end of the story, except the EU has one lever left, and we just watched it work.

This month, AI companies started watermarking their text output worldwide, not because any global law required it, but because the EU AI Act required it for the European market and scoping the behavior by region was harder than complying everywhere. The Act’s rules already reach training data: any general-purpose model placed on the EU market must demonstrate compliance with EU copyright law, including honoring opt-outs, regardless of where the training happened. The mechanism that made watermarking global could make preservation global. Add two conditions to the code of practice that AI providers have already signed: a scarcity check against library holdings before any destructive scan, and public deposit of scans of public-domain works. Neither touches the US fair-use trap, because neither requires distributing an in-copyright scan. One is a property decision. The other has no rightsholder to offend.

Brussels did not set out to regulate the fate of used books in a Georgia warehouse or a London stockroom. But it built the only lever that reaches them, and it has already proven the lever moves.

Medieval European monasteries copied manuscripts for a thousand years, through collapse and plague and fire, and the point was never the copy. The point was that someone, permanently, was charged with keeping it. Every legal instrument in this note is a modern version of that charge. The machines reading our books now answer to whichever jurisdiction takes the charge seriously. At the moment, only one does.

Written by human and machines, in the same workshop as the note it follows.