In an April 8 letter to Internet Archive founder Brewster Kahle, U.S. Senator Thom Tillis, chairman of the Senate Judiciary Committee Subcommittee on Intellectual Property, questioned the legal basis for the Archive's National Emergency Library initiative.

"I understand that your 'Library' will last until June 30, 2020 or the end of the coronavirus emergency in the United States, whichever is later, and that during this time, the Internet Archive will make 1.4 million books it has scanned available to an unlimited number of users," Tillis, a North Carolina Republican, writes. "I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act. Indeed, I am deeply concerned that your 'Library' is operating outside the boundaries of the copyright law that Congress has enacted and alone has jurisdiction to amend."

Although the letter is clearly intended as a brushback against Kahle's action (Tillis points out the growing number of publishers and authors voluntarily making works available, and cites an Authors Guild editorial from the New York Times), the Senator doesn't ask for any action or response from the Internet Archive. In fact, Tillis concludes by appearing to invite Kahle to engage with the Senate Subcommittee on Intellectual Property as it undertakes a yearlong review and potential reform of the Digital Millennium Copyright Act.

"At some point when the global pandemic is behind us," Tillis writes to Kahle, "I would be happy to discuss ways to promote access to books in a manner that respects copyright law and the property interests of American authors and publishers."

The Internet Archive announced the National Emergency Library project on March 24, in response to the closures of libraries during the Covid-19 crisis. The effort builds upon the Internet Archive's "Controlled Digital Lending" program, under which 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.

But the National Emergency Library is not Controlled Digital Lending, IA representatives concede, because "waitlists are suspended" for the 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.

I am deeply concerned that your 'Library' is operating outside the boundaries of the copyright law that Congress has enacted and alone has jurisdiction to amend.

After some positive initial headlines, including reports by NPR, Vice, and in the New Yorker, the move has since drawn rebukes from a number of individual authors, university presses, and indie publishers, as well as from trade associations like the Authors Guild and the Association of American Publishers.

In a blog post this week, Kahle acknowledged that in the "rush to help" citizens locked out from their school and library collections "we didn’t engage with the creator community and the ecosystem in which their works are made and published." In response, Kahle writes, the Archive has added staff to respond more quickly to takedown requests.

In addition, Kahle shared some statistics from the National Emergency Library's first two weeks. In terms of the collection, "90% of the books borrowed were published more than 10 years ago, two-thirds were published during the 20th century," Kahle writes. He also reveals that the majority of users spend less than 30 minutes with a borrowed book, with the data suggesting that "fewer than 10% of books borrowed" are actually opened again after the first day.

"Our usage pattern may be more like a serendipitous walk through a bookstore or the library stacks," Kahle writes. "In the real world, a patron takes a book off the shelf, flips through to see if it’s of interest, and then either selects the book or puts it back on the shelf. However, in our virtual library, to flip fully through the book you have to borrow it. The large number of books that have no activity beyond the first few minutes of interaction suggest patrons are using our service to browse books."