Enlarge /. Sign outside the Middle Country Public Library in Centereach, New York on March 26, 2020.
For nearly a decade, users have been able to "borrow" scanned digital copies of books that are in stock from the Internet Archive, an online library best known for their Internet Wayback machine. Until recently, users could only check out as many copies as the organization had physical copies. But last week, IA announced that this restriction would be lifted so that an unlimited number of users can check out a book at the same time. IA calls this the National Emergency Library.
The first media coverage of the service was very positive. The New Yorker declared it a "gift to readers everywhere". When the news spread about the new service, it triggered a backlash from authors and publishers.
"As a reminder, there is no rescue package for authors, rescue packages for booksellers or rescue packages for publishers," tweeted author Alexander Chee on Friday. "The Internet Archive's 'emergency' copyrights endanger many who are already in terrible danger."
"It's a pimped up piracy site," wrote author James Gleick.
The Authors Guild, a leading author organization, wrote on Friday that the move to the Internet archive was "horrified". "We are shocked that the internet archive would use the COVID-19 epidemic as an excuse to further marginalize copyright, thereby harming authors, many of whom are already having problems," the group wrote.
The Association of American Publishers also blew up the project last Friday. "We are amazed by the Internet Archive's aggressive, unlawful, and opportunistic attack on authors and publishers' rights amid the novel coronavirus pandemic," wrote the group, which represents dozens of publishers, including most of the largest in the United States.
The internet archive answers
Enlarge /. The danger belt blocks the book return slot in a London library.
In a blog post Monday, the director of the emergency library project, Chris Freeland, wrote that the concept of the emergency library was inspired by the closure of libraries in the United States and around the world.
"There are currently 650 million books that US taxpayers have paid for access and that are on shelves in closed libraries and are inaccessible to them," Freeland wrote. "To meet this unprecedented need on an unprecedented scale, we have placed waiting lists for our loan collection."
The article contains a section with general questions about the emergency library. A question raised in this post is: "What is the legal basis for digital lending of Internet Archives at normal times?" Freeland advocates the practice of controlled digital lending, which he believes is legal under the copyright fair-use doctrine – although no court has yet ruled on this issue.
However, the post does not directly address the legality of the library's latest incarnation, which offers unlimited copies of copyrighted books. Freeland notes that users can only read a book for two weeks (although they can renew it). And he notes that the courts have ruled that it is legal for libraries to scan books. However, he does not explain how the current incarnation of the service complies with copyright law.
When I asked Cornell copyright scientist James Grimmelmann about the legality of the program last week, he looked skeptical.
"There is no specific pandemic exception," according to copyright law, he said. The fair use exception to copyright is perpetual, so a judge could theoretically decide that the emergencies of a pandemic justify the actions of the internet archive. However, there are few examples of dishes making such a big leap. The internet archive takes at least a considerable legal risk.
The question is whether someone will actually file a lawsuit. Authors and publishers would probably have a strong argument. But lawsuits are expensive, and lawsuits against an online library distributing books in the middle of a pandemic could be a nightmare for public relations.
