Enlarge /. The danger belt blocks the book return slot in a London library.
Public libraries, which are closed in many communities around the world, have been one of the victims of social distancing measures related to corona viruses. This week, the Internet Archive, an online library best known for running the wayback machine on the Internet, announced a new initiative to expand access to digital books during the pandemic.
For almost a decade, an Internet archive program called Open Library has given people the ability to "review" digital scans of physical books stored in the Internet archive. Readers can view a scanned book in a browser or download it to an e-reader. Users can only check out a limited number of books at a time and must "return" them after a limited time.
Until this week, the Open Library only allowed people to "check out" as many copies as the library had. If you wanted to read a book, but all copies had already been checked out by other users, you had to join a waiting list for this book – just like in a physical library.
Of course, such restrictions when distributing digital files are artificial. Earlier this week, when libraries around the world were closed, the Internet archive announced a major change: these waiting lists will be removed temporarily.
"The Internet Archive will put waiting lists for the 1.4 million (and growing) books in our lending library by setting up a National Emergency Library to serve the country's displaced learners," wrote the Internet Archive in a Tuesday article. "This suspension will run until June 30, 2020 or until the end of the US national emergency, whichever is later."
The announcement on Tuesday met with great public interest. Almost 20,000 new users signed up on Tuesday and Wednesday. In the past few days, the Open Library has "borrowed" 15,000 to 20,000 books a day.
"Because of our national emergency, the library system helps those who need to study at home," said Brewster Kahle, founder of the Internet Archive. The Internet archive says the program will ensure that students have access to books they need to continue their studies from home while the coronavirus is blocked.
It's an amazing resource – one that offers a lot of value to people stuck at home due to the coronavirus. But as a copyright nerd I also had to ask myself: is this legal?
"It seems like a stretch"
The copyright implications of scanning books have long been controversial. In 2005, the Authors Guild and the Association of American Publishers sued Google for their ambitious program to scan books. In 2015, an appeals court ruled that the project was legal under the copyright fair-use doctrine. A 2014 ruling said that it was legal for libraries participating in the program to retrieve copies of the digital scans for purposes such as digital storage and improving access for disabled users.
Both decisions were based on the fact that scans were used for limited purposes. Google has created a search index and only displayed brief "excerpts" of book pages to users in the search results. Libraries only offered full-text books to readers with pressure disabilities. In no case was it checked whether it would be legal to distribute scanned books to the general public via the Internet.
But that's exactly what the internet archive has been doing for almost a decade. A 2011 article in Publishers Weekly said that Kahle had "told librarians at the recent ALA Midwinter Meeting in San Diego that after an initial handshake, publishers have barely taken a look at the Internet archive's rental efforts for digital books."
James Grimmelmann, a lawyer at Cornell University, told Ars that the legal status of this type of lending is far from clear – even if a library limits its lending to the number of books it has in stock. He was unable to name cases in which people "borrow" digital copies of books, as the Internet Archive did.
One of the closest analogies could be the music industry's lawsuit against ReDigi, an online service that allows users to "resell" digital music purchased online. The first sales theory of copyright has long allowed people to resell books, CDs and other copyrighted works on physical media. ReDigi argued that the same principle should apply to digital files. But the courts didn't buy it. In 2018, an appeals court ruled that transferring a music file over the Internet creates a new copy of the work, rather than simply transferring an existing file to the new owner. This meant that the first sales apprenticeship did not apply.
It is therefore unlikely that the first sales theory will apply to book lending. Could digital books be borrowed under fair conditions? ReDigi tried to make an argument for fair use, but the appeals court declined. The court "said we would not use fair use to restore the first sale," Grimmelmann told me in a phone interview Thursday.
In its Frequently Asked Questions about the National Emergency Loan Program, the Internet Archive mentions the concept of Controlled Digital Lending (CDL) and refers to this website, which contains a detailed white paper defending the legality of lending books online. The White Paper recognizes that the ReDigi precedent is not encouraging, but it points out that the courts have focused on the commercial nature of the ReDigi service. Perhaps the courts would consider a fair use argument from a nonprofit library more favorably.
"We believe these library uses are among the most likely of all different digital uses that are justified for fair use," the white paper said. "Several libraries have been dealing with limited CDL for years without any problems. It can be concluded that this fact indicates a tacit recognition of the strength of their legal position."
But Grimmelmann is not so sure. "I never definitely want to deal with fair use issues, but I would say it is a stretch to say that you can scan a book and distribute it digitally," he said. He added that the fair use argument for out of print books – especially "orphan works" whose copyright holders cannot be found – could be stronger. However, he said: "It's a tough argument for current in-print titles."
And the Open Library is well equipped with such titles. The library contains many copyrighted books that are still printed and widely distributed. You can buy books by J.K. Rowling's Harry Potter series, J.R.R. Tolkien's Lord of the Rings trilogy or novels by well-known authors such as John Grisham or Janet Evanovich.
Nobody seems to be interested in litigation
The legal basis for the Open Library loan program may be even more shaky as the Internet archive has lifted restrictions on the number of books people can borrow. The benefits of this expanded lending during a pandemic are obvious. However, it is not clear whether this makes a difference under copyright law. "There is no specific pandemic exception," Grimmelmann told Ars.
Traditionally, fair use analysis is based on four factors, including the purpose and the impact on the potential market. However, these factors are not exclusive. Theoretically, a judge could decide that the emergencies of a pandemic provide new justification for the fair use of the online book exchange. But Grimmelmann said he couldn't imagine previous cases in which courts made such a leap.
So should we expect the internet archive to face a lawsuit over its new loan program? The most obvious plaintiffs for such a lawsuit have been remarkably silent this week. On Thursday, I emailed the Authors Guild and the Association of American Publishers – the organizations that sued Google 15 years ago – to comment on the Internet Archive's new library program. Nobody answered.
Two years ago, the Authors Guild blew up the Internet Archive's loan program as an "obvious violation of copyright". But as far as I can tell, they never went to court on this matter and they don't seem ready to start a fight now. (To update: I didn't notice it before submitting this story, but the Authors Guild wrote Friday that it was "horrified" by the National Emergency Library.)
The internet archive also does not seem to be so interested in discussing the legal issues here. The Open Library offers extensive FAQs for borrowing books, but has no questions about the legality of the program. When I emailed the internet archive about the legal theory behind the program, I received an answer that led me to another FAQ that did not directly address the copyright issues raised by the program.
It is possible that neither side would currently benefit from a high-profile legal dispute. It would be terrible for publishers and authors to sue a library that expands access to books during a pandemic. And the Open Library customer base is still quite small, so the practical financial impact for publishers and authors is also likely to be small.
At the same time, the internet archive has no reason to incite the industry into a lawsuit that has a good chance of losing. As long as copyright holders are willing to look away, the internet archive can continue to provide digital information to as many people as possible – which is why Kahle started the internet archive in the first place.
"It was our dream to bring the original Internet to life," wrote Kahle on Tuesday. "The library is available to everyone."