Internet Archives establishes a National Emergency Library and publishers sue for copyright infringement
Library lending versus literary looting
What happens if a book stored in a digital library with the expectation that it will be released to one person at a time for a limited amount of time is suddenly made available for simultaneous reading to everyone who wants to read it?
Is that literary looting or library lending?
That’s the heart of the legal debate now raging between publishers and digital libraries. Major publishers are suing Internet Archives for their creation of a National Emergency Library saying that the nonprofit is taking revenue away from authors and publishers during the Coronavirus pandemic.
On June 1st, 2020, Penguin Random House, John Wiley & Sons, Harper Collins, and Random House filed suit against Internet Archives for “willful mass copyright infringement.”
The mission of Internet Archive
Internet Archives is a nonprofit organization building a database of digital sources throughout the world, including television programs, websites, videos, images, audio recordings, and software programs. They want to make information available to everyone.
“Like a paper library, we provide free access to researchers, historians, scholars, the print disabled, and the general public. Our mission is to provide Universal Access to All Knowledge.”
To date, Internet Archives has a phenomenal amount of information digitized and cataloged by 28 locations around the world, including accessible downloads of 2.5 million books published before 1923. Hundreds of thousands of contemporary works are offered for digital download, and every day, more than 1000 ebooks are added to the inventory of Internet Archive.
Ebooks can be borrowed in digital form by one person at a time for fourteen days after establishing a free account. Waitlists are created for patrons so they can check out a book as soon as it’s available, using the one-person-at-a-time rule.
The National Emergency Library
During the months when public libraries were closed and students were not able to go to school, Internet Archives decided to create a National Emergency Library. Beginning on March 24th, they provided access to classroom materials for thousands of students by suspending all waitlist requirements, allowing everyone in the world simultaneous access to the vast catalog of ebooks at Internet Archives.
What’s wrong with that?
It sounds noble. Altruistic. Isn’t it wonderful to provide people sheltering in their homes and studying from bedrooms unlimited use of ebooks?
Publishers disagree. Maria A. Pallante is the President of the Association of American Publishers. She asserts,
“There is nothing innovative or transformative about making complete copies of books to which you have no rights and giving them away for free. They’ve stepped in downstream and taken the intellectual investment of authors and the financial investment of publishers; they’re interfering and giving this away.”
So we’re back to the crux of the heated debate: Is giving away unlimited ebooks to an unlimited number of people okay? Is this literary looting or library lending?
The Beginning of Lending Libraries
Lending libraries are not a new thing, having been established by my history crush Ben Franklin in 1731. Back then, members of the Junto, a club of men interested in philosophy and learning, decided to create an organization that loaned books. The “membership requirements” were slightly different than they are today. Each member had to donate money for the purchase of books and then commit to giving funds every year for the acquisition of new materials. So it wasn’t quite FREE access at first; there were membership dues. Now, we might not think that we’re paying membership dues to use the library, but a small portion of our local tax bill funds the public library system.
As the Junto’s book collection grew, members of Congress borrowed from it. Eventually, ‘Ben Franklin and Friends’ Library’ became the Library of Congress. Other cities followed that model with the first public library supported by taxes being founded in Peterborough, New Hampshire in 1833.
Almost two hundred years later, providing free access to unlimited reading material serves the public good but causes problems with need-for-profit, private enterprises like publishing companies.
The tension between publishers and libraries The balance between publishers and the public function of libraries has always been precarious. Publishers need to make money. Libraries need to distribute books to as many people as possible on the purchase of one book. This delicate balance has been upset with the introduction of ebooks which can be mass distributed with the click of a button.
The tension between the private publishing companies and the public lending library is not new, and ebooks have stirred the pot. In 2011, HarperCollins implemented a policy for libraries that imposed a new rule: Ebooks could be loaned only 26 times per title which is about one year of patron use. Right now, during the global pandemic, Internet Archive is giving free, unlimited access to millions of ebooks to hundreds of people at one time. While the National Emergency Library is targeted to educators and classrooms, there’s no denying that the ‘no-waitlist-no-limit-to-the-number-of-readers’ policy is applied to anyone with an account.
Internet Archive’s argument
Internet Archives cites Professor Ariel Katz, in his paper Copyright, Exhaustion, and the Role of Libraries in the Ecosystem of Knowledge explains:
“Historically, libraries predate copyright, and the institutional role of libraries and institutions of higher learning in the “promotion of science” and the “encouragement of learning” was acknowledged before legislators decided to grant authors exclusive rights in their writings. The historical precedence of libraries and the legal recognition of their public function cannot determine every contemporary copyright question, but this historical fact is not devoid of legal consequence… As long as the copyright ecosystem has a public purpose, then some of the functions that libraries perform are not only fundamental but also indispensable for attaining this purpose. Therefore, the legal rules … that allow libraries to perform these functions remain, and will continue to be, as integral to the copyright system as the copyright itself.”
In other words, libraries existed BEFORE copyright laws, and their rights to enhance public learning are legally protected, including the right to digitize accessible books.
Internet Archive is funded
“through donations, grants, and by providing web archiving and book digitization services for our partners.”
It also gets money from large organizations like the National Council for Humanities, the National Science Foundation, the Andrew W. Mellon Foundation, the Democracy Fund, among others.
Better World Books is also a special partner to Internet Archives. Better World Books is a company formed in 2002 with the goal of increasing literacy. Their tagline is “Doing well by doing good: We believe profit is not the only way to measure business success.”
Used books are donated to Better World Books and then resold or recycled. For each book sold, a book is donated to an at-risk community. The books donated to Better World Books are considered “accessible” by Internet Archive. Better World Books’ partnership with Internet Archive provides donated books — no matter the age of the book — to Internet Archive who then scans and digitizes even contemporary works.
Is there bad blood between publishers and libraries?
Some would argue that libraries help publishers by creating readers, buying books for their shelves, producing great writers, and establishing an audience for the future.
But there is always a struggle between private and public, between profit and charity.
Internet Archive’s establishment of a National Emergency Library has only emphasized the difference in philosophies.
A hot, ongoing, and probably long-lasting issue
Waitlists for ebooks at Internet Archive have been suspended until the end of June, or whenever the national pandemic emergency is over, whichever is later.
Internet Archive’s free access to millions of ebooks continues for at least another month, maybe longer.
People continue to read.
Publishers continue to be outraged.
The court system continues to litigate the debate.
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