A “closed” sign outside the Tenley/Friendship DC Public Library on March 16, 2020, in Washington, DC.
Mandel Ngan/Getty Images
When the Internet Archive announced last week that it would respond to the historic shuttering of brick-and-mortar libraries across the country by creating a “National Emergency Library,” the news was initially met with praise from outlets like NPR and the New Yorker, the latter calling it “a gift to readers everywhere.” But over the weekend, authors including Colson Whitehead, Alexander Chee, and Chuck Wendig condemned the move as comparable to piracy—and then received pushback in turn from some readers who wondered how this is any different from a regular library offering an e-book.
The Internet Archive is a non-profit perhaps best known for its Wayback Machine, which has archived over 400 billion web pages. In addition to digital copies of your old LiveJournal entries, users can also access somewhere around 4 million books through the Internet Archive, of which some 2.5 million are in the public domain. The rest, which the organization says are acquired “through purchase or donation,” are usually available through a lending system similar to that of a regular library, where there are a limited number of copies that can be checked out at one time.
Last Tuesday, the Internet Archive announced that it would suspend its waitlists for 1.4 million digitized books in its lending library so that copies can be checked out by an unlimited number of borrowers at the same time, calling it a “National Emergency Library” to take the place of the physical locations that have shut down. The moratorium on lending limits is scheduled to last through June 30, “or the end of the US national emergency, whichever is later,” though books are available not just to Americans but borrowers around the world. Librarians at institutions like Dartmouth, MIT, and Brown signed a letter of public support for the measure.
By Saturday, however, writers had taken to social media to express their displeasure with the Internet Archive and to criticize laudatory coverage of a website that they say engages in piracy. (NPR has since appended its original post with one covering the controversy.)
The Authors Guild, an organization that advocates for and provides legal assistance to writers, also condemned the Internet Archive in no uncertain terms:
We are shocked that the Internet Archive would use the Covid-19 epidemic as an excuse to push copyright law further out to the edges, and in doing so, harm authors, many of whom are already struggling.
With mean writing incomes of only $20,300 a year prior to the crisis, authors, like others, are now struggling all the more—from cancelled book tours and loss of freelance work, income supplementing jobs, and speaking engagements. And now they are supposed to swallow this new pill, which robs them of their rights to introduce their books to digital formats as many hundreds of midlist authors do when their books go out of print, and which all but guarantees that author incomes and publisher revenues will decline even further.
The Guild was joined in its criticism by the Association of American Publishers, whose president and CEO wrote that the AAP is “stunned by the Internet Archive’s aggressive, unlawful, and opportunistic attack on the rights of authors and publishers in the midst of the novel coronavirus pandemic.”
The Internet Archive released a lengthy response to both of those statements, which they say “contain falsehoods that are being spread widely online.” The statement reiterates that there are still two-week borrowing limits on books, so lending is limited by duration, if not by the number of borrowers, and drew parallels between its lending library and the e-book lending system that traditional libraries use. The only difference here, the logic goes, is that multiple people can check out a copy of a digitized book at a time, expanding access during an extraordinary period of time in which most people can’t travel to a brick-and-mortar library.
The Internet Archive also says it gets its copies of contemporary books “through purchase or donation,” much like traditional libraries doe. “This has been true and legal for centuries. The idea that this is stealing fundamentally misunderstands the role of libraries in the information ecosystem,” Internet Archive’s Director of Open Libraries Chris Freeland wrote in his response, invoking the “first sale doctrine” that allows libraries to lend books in the first place. But how the Internet Archive acquires those books is not exactly analogous to the process that traditional libraries go through.
The first clue is that the digitized books in the National Emergency Library are, as Freeland acknowledges, not e-books—they’re scans of physical pages. That’s because when a traditional library lends out an e-book, it means they bought a license to an individual copy of that e-book, and each copy can only be accessed by one person at a time (a fact that has caused friction between libraries and publishers when only one e-book copy of a popular title is made available). The license lasts for a limited number of lendings, at which point the library must pay to re-license the book so that they can still lend it out. Most importantly, because libraries negotiate the terms of their e-book licensing with publishers, authors can receive royalties based on how often their book is re-licensed.
What the Internet Archive does is different. It acquires books like Whitehead’s Underground Railroad by purchasing a physical copy, scanning the book into its system, and then lending that copy out. Whitehead would receive royalties from that one initial sale, but not for any of the additional innumerable times users check the book out from the National Emergency Library. The Internet Archive points out that libraries are allowed to and do sometimes digitize books this way—but not, usually, for this purpose. Libraries can scan books, for example, to make the physical copies accessible to visually impaired readers.
The Internet Archive also points to “fair use” as the legal basis for their project, but Adam Kessel, a lawyer at Fish & Richardson who specializes in intellectual property and copyright law, told me that a fair use defense of the National Emergency Library probably wouldn’t hold up in court. The definition of fair use—which means that the usage doesn’t constitute copyright infringement—is pretty flexible, and a lot of boundaries around digital fair use are still being drawn. But according to Kessel, the main factor that courts are using to determine whether something qualifies as fair use is whether or not “the use of the copyrighted material is transformative. Is it making a different use than was previously available? With the Internet Archive, it’s a difficult argument to make because they’re not transforming the copyrighted work. They don’t have a lot of support in case law to suggest that their use would be found fair in a court.”
There is also reason to believe the “first sale doctrine” wouldn’t apply here, said Kessel, who told me that the closest comparable case is Capital Records vs. ReDigi, which involved people trying to resell mp3s that they had purchased. If someone buys a CD, they’re allowed to resell it. But the Second Circuit Court of Appeals ruled that the same doesn’t apply to an mp3 file, because the seller isn’t physically giving it to someone, but making a copy of it. “The first sale doctrine doesn’t get much latitude when you’re talking about everything being digital and virtual because you’re actually making copies rather than moving physical property around,” said Kessel.
Kyle Courtney, a copyright lawyer that the Internet Archive cited in a defensive tweet, disagreed in a blog post, writing that in an emergency scenario like the COVID-19 pandemic, libraries and archives have “superpowers” under copyright law if the purpose of releasing copyright materials is for educational purposes. Kessel said that defense might work—and conceded that universities do typically have broad leeway in terms of distributing copyrighted material—but only if the Internet Archive was making its National Emergency Library available specifically to educational institutions. Because they’re distributing entire books to anyone, anywhere, the likelihood of this qualifying as fair use would be low.
Kessel added that another significant factor for fair use is “whether it’s impacting the market for the work.” If the Internet Archive were only making available books that didn’t already have digital versions available for sale, or if physical bookstores and libraries were the only places to access these books, then their argument that the National Emergency Library qualifies as fair use would be stronger. But distributing books which already have e-books and whose sales would rather obviously be affected by an easily accessible free version being available like Whitehead’s—which were taken down after he emailed the archive—likely wouldn’t pass muster in a court case, according to Kessel.
Still, other than asking the Internet Archive to take down their books, authors and publishers have little recourse—and this is perhaps where the national emergency framing makes the most sense. “The way the pandemic plays into this most significantly is the optics,” Kessel said. “This service is making cultural content available during a time when people are stuck inside their homes. I would think that the major publishers would be reluctant to look like bad actors.” And because courts are largely closed for non-essential business, it’s very unlikely a case against the Internet Archive would even see a courtroom until after the pandemic is over, if ever.
Meanwhile, readers who are bored at home but want to support their favorite writers can continue buying from local bookstores who still deliver or check out bookshop.org, which donates a portion of their proceeds to indie bookstores. (Slate has an affiliate partnership with bookshop.org and may receive a commission from books you buy through our links.) You can also still buy e-books or check them out from libraries, many of whose digital lending systems are still operating.
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