Internet Archive founder Brewster Kahle is defending the legality of the organization’s National Emergency Library initiative to a U.S. Senator who last week raised concerns that the effort may be infringing the rights of authors and publishers.
“You raise the question of how this comports with copyright law,” Kahle wrote to U.S. Senator Thom Tillis (R-NC). “Fortunately, we do not need an ‘emergency copyright act’ because the fair use doctrine, codified in the Copyright Act, provides flexibility to libraries and others to adjust to changing circumstances.”
In an April 8 letter to Kahle, Tillis, chairman of the Senate Judiciary Committee Subcommittee, suggested the Internet Archive was “unilaterally” creating an “emergency copyright act,” and expressed concern that the library may be “operating outside the boundaries of the copyright law that Congress has enacted and alone has jurisdiction to amend.”
The Internet Archive announced the National Emergency Library project on March 24, in response to the widespread closures of libraries and schools during the Covid-19 crisis, making its 1.4 million scans of mostly 20th century print books available for unlimited borrowing until June 30, or until the crisis is over. After some positive initial headlines, the move has drawn rebukes from some individual authors and publishers, as well as accusations from trade associations, including the Association of American Publishers, which has accused the Archive of an "opportunistic attack on the rights of authors and publishers," and the Authors Guild, which accused the Internet Archive of “acting as a piracy site.”
In his three-page response to Tillis, Kahle rejected those criticisms, and explained the creation of the National Emergency Library using the Senator's constituents to illustrate its utility.
“Your constituents have paid for millions of books they currently cannot access,” Kahle explained, adding that North Carolina’s public libraries house more than 15 million print book volumes in 323 library branches across the state. “The massive public investment paid for by taxpaying citizens is unavailable to the very people who funded it,” he writes. “The National Emergency Library was envisioned to meet this challenge of providing digital access to print materials, helping teachers, students and communities gain access to books while their schools and libraries are closed.”
Kahle further maintained that “the vast majority” of the books in the National Emergency Library, mostly 20th Century books, are not commercially available in e-book form, and said the collection contains no books published in the last five years.
“[For] access to those books, readers and students can continue to turn to services like OverDrive and hoopla,” Kahle explained, making what defenders say is a critical distinction: commercial providers offer patrons access to e-books; the National Emergency Library is providing stopgap digital access to scans of paper books that are locked away in shuttered libraries and schools. “That is where the National Emergency Library fills the gap,” Kahle wrote.
In a blog post this week, the Internet Archive also shared testimonials from educators who are using the NEL to provide students with access to works when the institution's physical copies are inaccessible. In the first two weeks of the National Emergency Library, Kahle said the total number of books checked out “is comparable to that of a town of about 30,000 people,” with about 90% of people who check out a scan looking at it for 30 minutes or less, suggesting most people are "browsing" the collection, or using it to research something specific.
Kahle also sought to blunt the Authors Guild contention that the Internet Archive’s scanning and lending is tantamount to a pirate site, explaining to Tillis that the National Emergency Library scans must be checked out and returned, are DRM-protected, and cannot be kept, copied or redistributed. And he reiterated that the Internet Archive will remove any author’s book from the National Emergency Library with an email request—authors do not need to submit a formal DMCA takedown letter.
The letter closes by accepting Tillis's invitation to engage with the Senate on a potential modernization of the Digital Millennium Copyright Act.
"We welcome further discussion on these topics including what new legislation may be needed to preserve and extend the role of libraries in the digital age," Kahle concludes. "We recognize that in our haste to respond to the urgent needs of teachers, students, and librarians,we did not do enough to engage with the broader information ecosystem, like authors, publishers and policymakers. We are engaging in those conversations now and we would welcome your participation in discussions about how to meet the urgent access needs of our country during this crisis and beyond."