The outcry from publisher and author groups has been swift and furious after the Internet Archive announced last week the launch of its National Emergency Library, which has removed access restrictions for some 1.4 million scans of mostly 20th century books in the IA's Open Library initiative, making them available for unlimited borrowing during the Covid-19 Outbreak.
“We are 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," reads a March 27 statement from Association of American Publishers president and CEO Maria Pallante, adding that publishers are already "working tirelessly to support the public with numerous, innovative, and socially-aware programs that address every side of the crisis: providing free global access to research and medical journals that pertain to the virus; complementary digital education materials to schools and parents; and expanding powerful storytelling platforms for readers of all ages."
The Authors Guild said it too was "appalled" by the program. "[The Internet Archive] is using a global crisis to advance a copyright ideology that violates current federal law and hurts most authors," reads a March 27 statement. "It has misrepresented the nature and legality of the project through a deceptive publicity campaign. Despite giving off the impression that it is expanding access to older and public domain books, a large proportion of the books on Open Library are in fact recent in-copyright books that publishers and authors rely on 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."
In a statement on March 24, Edward Hasbrouck, co-chair of the National Writers' Union 's book division also accused the IA of "using the coronavirus pandemic as an excuse" to redistribute copyrighted works without permission or payment.
"So much for authors’ incomes in a time of crisis. Do librarians and archivists really want to kick authors while our incomes are down?" Hasbrouck writes. "The argument is that students need e-books while they are staying home. But that’s an argument for spending public funds to purchase or license those resources for public use — not putting the burden of providing educational materials for free on writers, illustrators, and photographers. Authors also need to eat and pay rent during this crisis."
The Internet Archive announced the National Emergency Library project on March 24, in response to the closures of libraries during the Covid-19 crisis, building upon the Internet Archive's "Controlled Digital Lending" program. Under CDL, a library (or a nonprofit, like the Internet Archive's Open Library) scans a print copy of a book they have legally acquired, then makes the scan available to be borrowed in lieu of the print book, using a DRM-protected one user/one copy model, and, crucially, taking the corresponding print book out of circulation while the digital copy is on loan. Notably, the AAP, AG, NWU, and dozens of other groups around the world have maintained that the practice of CDL was illegal before suspending its controls on lending.
But the National Emergency Library is not Controlled Digital Lending, the IA concedes in an FAQ on the site, because "waitlists are suspended" during the pandemic. "Once the US national emergency is over and waitlists are back to their normal capacity, the service will return to full controlled digital lending."
Until the major publishing and authors associations weighed in, much of the media coverage of the NEL's launch, including reports on NPR, Vice, and in the New Yorker, had been generally positive. A March 28 piece by Timothy B. Lee in Ars Technica presents one of the more comprehensive takes so far, asking a critical question: is the program legal? According to Cornell Tech Law professor and PW contributor James Grimmelmann, probably not. "I never want to weigh in definitively on fair use questions, but I would say that it seems like a stretch to say that you can scan a book and have it circulate digitally," Grimmelmann told Ars Technica.
A blog post by the IA's Chris Freeland explains the National Emergency Library's mission, and collection:
"The books that we’ve digitized have been acquired with a focus on materials published during the 20th century, the vast majority of which do not have a commercially available e-book," Freeland explained. "This means that while readers and students are able to access latest bestsellers and popular titles through services like OverDrive and Hoopla, they don’t have access to the books that only exist in paper, sitting inaccessible on their library shelves. That’s where our collection fits in—we offer digital access to books, many of which are otherwise unavailable to the public while our schools and libraries are closed."
Freeland's post also recognizes that "authors and publishers are going to be impacted by this global pandemic as well," and encourages "all readers who are in a position to buy books to do so, ideally while also supporting your local bookstore."
At press time, PW is still waiting to speak with IA officials.