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Last week, cheerful news reports were published at both NPR and the New Yorker: The Internet Archive had just launched a service called the National Emergency Library, from which anyone could borrow digital copies of 1.4 million books without a waiting list. But as authors responded angrily on social media, the story rapidly went from feel-good to very, very complicated.
“By God, if you can’t afford them, or if the books you need aren’t in any bookstore, and, especially, if you are one of the currently more than one billion students and teachers shut out of your classroom, please,” wrote Jill Lepore at the New Yorker’s website, “sign up, log on, and borrow!”
“What the Internet Archive is doing right now—allowing unlimited downloads of books under copyright, for which they have not paid, and have no legal right—is not serving as a library. It’s piracy,” responded author Seanan McGuire on Twitter.
The Emergency Library wasn’t a true library at all, authors argued. What it was doing was not only illegal but also taking a source of income away from authors when they needed it most.
“As a reminder, there is no author bailout, booksellers bailout, or publisher bailout,” wrote Alexander Chee. “The Internet Archive’s ‘emergency’ copyrights grab endangers many already in terrible danger.”
On Friday, the Authors Guild released a statement decrying the Emergency Library as a case of the Internet Archive using the coronavirus pandemic “as an excuse to push copyright law further out to the edges.” The same day, the Association of American Publishers declared itself “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.”
“Both statements [from the Authors Guild and the AAP] contain falsehoods that are being spread widely online,” the Internet Archive countered in a defensive statement it released on Monday. The Internet Archive maintained that it was doing absolutely nothing predatory or illegal, and that it was simply stepping up to help the nation’s readers during a national emergency.
In the midst of all this back-and-forth, readers who are just looking to access books while also staying home, and do so without being a jerk, could be forgiven for being confused.
With shelter-in-place orders and other social distancing mandates in effect all over the country, most public libraries have shut their doors. And while you can still access ebooks through public library systems, you generally have to add yourself to a waiting list for the most popular books. If you want to purchase books, Amazon is not currently prioritizing shipping out nonessential packages, and many indie bookstores have closed their doors. (Although many remain open through the mail, or are operating through bookshop.org.) So where can you go to get your book fix?
The Internet Archive is arguing that with the Emergency Library, it’s doing exactly what all public libraries are doing, legitimately and legally, only it’s eliminated the waiting list. Authors, meanwhile, are arguing that the Internet Archive is making a rights grab that affects their bottom line.
To understand the fight, we’re going to have to dig into some copyright law.
Traditional libraries license their ebooks directly from the publisher. The Emergency Library does not.
Publishers and libraries worked out a business model for ebooks some time ago. It works like this: Libraries can license ebooks from publishers and lend them out to patrons, but they pay substantially more money than individual readers do when they license ebooks. (You never really buy an ebook — you just buy a license to read an ebook.) And the files that libraries lend out have code embedded that makes it impossible for them to go to more than one patron at a time — hence those public library waitlists.
The idea is that this model allows libraries to make their books accessible digitally, but it also allows publishers, and by extension authors, to get paid for their work without losing sales. When a printed library book is very popular, libraries tend to purchase more copies, and they must also order replacement copies if the print versions wear out. Publishers say that the library ebook licensing system they’ve set up allows them to mimic that revenue stream with digital books, so that authors and publishers aren’t penalized when a book does particularly well as a library ebook.
But the Internet Archive does not work the same way that traditional libraries do. Founded in 1996 by Brewster Kahle, the engineer who built the search engine Alexa (later acquired by Amazon), the Internet Archive has the stated goal of ensuring universal access to all knowledge. It maintains the Wayback Machine and Archive-It, which archive deleted websites.
And it archives books as part of its Open Library project, an open-source project that seeks to create a web page for every book ever created. That’s where things get tricky.
All of the Internet Archive’s books are printed books that it received through purchase and download, which everyone agrees is legal. However, what the Internet Archive does with those printed books is a little bit more controversial: It scans them to create its own digital files.
So when the Internet Archive lends a user an ebook, either through Open Library or, now, through the Emergency Library, it’s not lending them a formatted and restricted ebook that it has paid to license from a publisher, the way traditional public libraries do. It’s sending the user an original digital file, which the user can keep on their device for two weeks.
Now, the Emergency Library is making those files available to users without any restrictions beyond that two-week time limit. That means that it’s become very easy for users to access whatever books they like without any money beyond the initial sale of the physical printed copy going to publishers — or, by extension, to authors.
So is that legal? Depends who you’re asking.
The Internet Archive calls its practice Controlled Digital Lending. The Authors Guild says it’s illegal.
Since 2018, the Internet Archive’s position, as articulated in a white paper by Duke University research librarian David Hansen and Harvard copyright adviser Kyle Courtney, has been that its digital files are protected under first sale doctrine and under fair use. Because the Internet Archive owns the physical book it is making its digital file out of, Hansen and Courtney maintain, it is allowed to do whatever it wants with that physical book, as long as it ensures a one-to-one “owned-to-loan” ratio. That’s the first sale doctrine part of the argument: As long as the Internet Archive only ever lends out one digital file at a time for every copy of a printed book it owns, this theory goes, it’s in the clear. And furthermore, because the Internet Archive is doing the whole thing to advance the cause of knowledge throughout the world, its actions fall under fair use. The theory is called Controlled Digital Lending (CDL).
Authors and publishers have strongly refuted this argument. In a 2019 statement, the American Association of Publishers wrote that Open Library “would create direct market substitutes for publishers’ extensive licensed offerings, not only for digital copies but also for hard copies. The substitutes are not at all transformative of either the copied work or the use of the copied work,” transformative works being part of the established understanding of how fair use works. (In other words, it’s fine under fair use to write a parody of something under copyright, but it’s not fine to just go around distributing free copies of someone else’s copyrighted work.)
“Authors need to be compensated for their work like everyone else,” wrote the Authors Guild in a statement in 2019. “Trade book authors don’t get salaries or other fixed compensation; copyright is their only currency. Open Library and other CDL proponents’ failure to understand the importance of respecting authors’ copyrights is backwards thinking hidden under a false veil of progressivism. We must stop this Controlled Digital Lending nonsense in its tracks.”
Multiple authors have issued takedown notices to the Internet Archive both for the Open Library and, this past week, for the Emergency Library. Some succeeded in getting their books taken down, but according to the Authors Guild, the Internet Archive declined to remove certain titles on the grounds that it was all acceptable under Controlled Digital Lending.
Now, the Emergency Library initiative has taken the owned-to-loan ratio out of the Internet Archive’s argument. By eliminating the waitlist for books, it’s lending out multiple digital copies of books that it only owns one physical copy of. In a statement on its website, however, the Internet Archive insists that its activities are still covered under fair use and first sale doctrine, and that the lending is still controlled because users only have access to a file for a two-week period.
“There is simply no basis in the law for scanning and making copies of entire books available to the public,” the Authors Guild responded.
No matter what happens to the Emergency Library, authors are losing sales when they need them most
It’s unlikely that any author or publisher will take the Internet Archive to court in the midst of a global pandemic. But in the meantime, authors who are watching the Emergency Library deliver their books to the public for free are furious.
Authors are arguing that the Emergency Library is essentially piracy, and that it’s cutting into their legitimate sales. I’ll note here that there’s a galaxy brain take floating around Twitter which states that creatives should stop complaining about piracy because it is essentially free advertising and will in fact help their sales. That take largely seems to be pegged to an EU study from 2017 which found that digital piracy does not affect video game sales. However, other studies have come to more complicated conclusions, and in the book world, anecdotal evidence suggests piracy hurts more than it helps.
Regardless, most authors take issue with the idea that by trying to preserve their rights to the intellectual property for which they are already underpaid, they’re blocking humankind from accessing art and knowledge — especially in the midst of a pandemic and an accompanying economic crisis.
“Artists get no safety net,” wrote author Chuck Wendig in a statement on his blog. “We don’t get unemployment and aren’t likely to be able to participate in any worker bailouts. Health insurance alone is a gutpunch cost, not to mention the healthcare costs that insurance wouldn’t even cover.”
At this point in time, tweeted author Margaret Owen, if you’re downloading ebooks through a service that’s not a library or a licensed vendor, you are “cutting into our money for hospital and/or funeral bills.”
“This isn’t monopoly money,” she continued. “We all saw the horrifying story about the 17-year-old who died of COVID because he was turned away for being uninsured?”
“How many authors are looking at an insurance bill they can’t pay right now?”
Correction: An earlier version of this story said that Brewster Kahle built “Amazon’s Alexa.” Kahle founded the search engine Alexa, later acquired by Amazon, but did not work on Amazon’s Alexa assistant.
