Internet Archive’s National Emergency Library is “Vile” Says Copyright Alliance

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Last week the Internet Archive responded to the coronavirus outbreak by offering a new service to "displaced learners". Combining scanned books from three libraries, the Archive offered unlimited borrowing of 1.4 million books, so that people can continue reading while in quarantine. What followed was a huge backlash from publishing and pro-copyright groups, with the Copyright Alliance decribing the actions of IA's operator as "particularly vile."

Millions of people around the planet rely on public libraries to seek out books and the knowledge and education they provide. Libraries operating in the physical realm are bound by obvious restrictions, including that they can only lend out as many books as they have to hand.

After a book is removed from a shelf, for example, it can only be re-lent once it has been returned by the borrower. In the digital space, on the other hand, more copies can be generated in an instant, resulting in a potentially inexhaustible supply – should no artificial ‘wait’ times be implemented, of course.

The Internet Archive (IA) operates one such a library offering a massive repository of scanned books that generally restricts lending in line with “wait time” guidelines. Last week, however, the resource announced an unprecedented response to the challenges being faced by learners due to the coronavirus pandemic.

Rather than users having to wait for digital books to be ‘returned’, the IA revealed that at least until the end of June 2020, it would “suspend waitlists” for the 1.4 million books in its newly-formed National Emergency Library.

“This is a response to the scores of inquiries from educators about the capacity of our lending system and the scale needed to meet classroom demands because of the closures,” wrote IA’s Director of Open Libraries Chris Freeland.

The response among borrowers, especially given the hard times currently being faced by all, was immediately positive. “You are an angel on earth,” one wrote. “Y’all have digitized a book that one of my faculty wants his students to read (by tomorrow! when they will virtually meet the author!). Author and professor will be thrilled,” another responded.

Perhaps inevitably, however, groups representing the rights of authors were less pleased with the new ground rules. Within days the initiative was slammed by the Authors Guild, which declared that it was “appalled” by the Internet Archive’s decision to expand the scope of the library.

“IA has no rights whatsoever to these books, much less to give them away indiscriminately without consent of the publisher or author,” the Guild wrote. “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.”

The group says that while large swathes of the world are suffering due to the pandemic, authors should not be deprived of sales that might otherwise have taken place, had the IA not taken the decision to give free books to all, in whatever volumes are necessary to fulfill demand. This, the Authors Guild says, is contrary to federal law and even affects in-copyright books that authors rely upon for “critical revenue”.

“Acting as a piracy site — of which there already are too many — the Internet Archive tramples on authors’ rights by giving away their books to the world,” the group wrote.

The Internet Archive believes it is staying on the right side of the law, with the process of supplying temporary copies of books to users falling under the banner of ‘Controlled Digital Lending’ (CDL). Opponents, including some authors, authors’ groups, and publishers, vigorously disagree.

The National Writers Union (NWU), for example, insists that “CDL infringes authors’ and publishers’ copyrights and deprives them of revenues that they would earn if readers obtained their works though other, legitimate channels.”

But even when considering the Public Lending Right, which already exists in several countries around the world but not the United States, NWU remain unhappy. PLR ensures that authors are paid whenever their books are borrowed from libraries (in the UK authors should receive around 8.5p for each withdrawal) but IA’s library even tramples on that concept according to NWU.

“[I]n addition to its other harms, CDL deprives authors of PLR compensation by diverting readers who would otherwise borrow books from foreign libraries to ‘borrow’ bootleg CDL copies served up from the U.S. by the Internet Archive or other U.S. institutions,” NWU adds.

But of course, physical libraries aren’t operating as they should at the moment due to the pandemic, a point not lost on the Internet Archive.

“Right now, today, there are 650 million books that tax-paying citizens have paid to access that are sitting on shelves in closed libraries, inaccessible to them. And that’s just in public libraries,” IA wrote in a response to criticism last evening, adding that statements by the Authors Guild and the Association of American Publishers “contain falsehoods that are being spread widely online.”

IA insist that the fair user doctrine underlies its system, as explained in the Position Statement on Controlled Digital Lending. The organization also reiterates that there are restrictions in place to prevent loans from being any more permanent than they were before the crisis took hold.

“Readers who borrow a book from the National Emergency Library get it for only two weeks, and their access is disabled unless they check it out again. Internet Archive also uses the same technical protections that publishers use on their ebook offerings in order to prevent additional copies from being made or redistributed,” IA explains.

But despite the fact that the Internet Archive believes it is on safe ground, yet more pro-copyright groups have been piling on in disgust. In a scathing attack on IA founder Brewster Kahle, last night the massive Copyright Alliance likened the lending library to looters taking advantage at a time of crisis.

“Unfortunately, while most people are doing the right thing and rallying in support of one another, there are also those who are taking advantage of the mayhem to throw bricks through store windows and make things much worse for those that need our help. There is no better example of this than Brewster Kahle and the Internet Archive,” Copyright Alliance chief Keith Kupferschmid wrote.

“At a time when authors, like many others, are struggling to pay the rent and put food on the table, Kahle and the Internet Archive, are throwing bricks through their windows and looting their houses.”

Noting that people including Tim Cook, Elon Musk, Mark Zuckerberg and the Clintons have all dipped into their own pockets to offer help to those in need, the library operated by Kayle is funded by “money out of the pockets of those who need it the most – American authors.”

“Under normal circumstances his actions would be reprehensible,” Kupferschmid added, “but given the current situation and Kahle’s enormous wealth, his actions are particularly vile.”

While most of the attacks on the National Emergency Library thus far have either declared it flat-out illegal or worthy of criticism for trying to expand the limits of copyright law, no one is yet putting their head above the parapet with a legal team in tow. The perils here are clear, of course.

Few copyright holders will want to get drawn into an ugly battle at a time of national crisis and even fewer will relish the prospect of emerging the other side with a defeat. Like the pandemic itself, that too would go down in history and would not be easily forgotten.


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