US Senate IP Chief Questions Internet Archive’s ‘National Emergency Library’

In News by Porter Anderson3 Comments

Capping cries of foul from publishing players, the Internet Archive gets a letter from Thom Tillis, the Senate’s intellectual property chair:  No user ‘ can unilaterally create an emergency copyright act.

Headquarters of the Internet Archive on Funston Street in San Francisco. Image: Internet Archive press photo, Katie Barrett

By Porter Anderson, Editor-in-Chief | @Porter_Anderson

Sen. Tillis: ‘Outside the Boundaries of Copyright Law’
In a letter dated Wednesday (April 8), US Sen. Thom Tillis (R-NC) writes to the chief of the San Francisco-based Internet Archive, “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.”

And with that, the nonprofit repository’s founding “digital librarian,” Brewster Kahle, now has attracted what can be read as a warning shot across the Archive’s pillared porch on Funston Avenue from the Senate Judiciary Committee’s Subcommittee on Intellectual Property.

“I am not aware,” writes Sen. Tillis, “of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act.”

Long before we looked at the “controlled digital lending” legal theory debate in a January 2019 article and a February 2019 piece here at Publishing Perspectives—when the United States’ Authors Guild and the United Kingdom’s Society of Authors had made simultaneous demands that the Internet Archive’s Open Library immediately stop lending scanned copies of physical books on their site—Kahle’s program’s practice of what the Guild called “unauthorized copying, distribution, and display of books” was being sharply criticized by many in the publishing industry.

In February 2019, the Association of American Publishers took on David Hansen and Kyle Courtney’s argument, which for years has been pointed to by fans of “controlled digital lending” as a kind of talisman of the concept’s legitimacy.

In its article, the association wrote, “AAP strongly disagrees with the analysis of the white paper and its call to libraries to copy and transmit copies of entire books to the public in disregard of the law.

“Controlled digital lending not only rationalizes what would amount to systematic infringement, [but it also] it denigrates the incentives that copyright law provides to authors and publishers to document, write, invest in, and disseminate literary works for the benefit of the public ecosystem.”

What has brought the issue once more to the furious attention of many publishing players—and finally to Capitol Hill—is Kahle’s most recent evocation of what he has previously called the “Internet Archive Open Library.”

His new name for this feature is the “National Emergency Library.” And as that name implies, Kahle has apparently felt that the coronavirus COVID-19 pandemic—which at this writing has killed 14,818 Americans and 89,907 world citizens—is the time to make what the president and CEO of the Association of American Publishers calls an “opportunistic attack on the rights of authors and publishers.”

Maria A. Pallante’s statement, issued March 27, reads:

Maria A. Pallante

“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.

“Publishers are 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; offering complementary digital education materials to schools and parents; and expanding powerful storytelling platforms for readers of all ages.

“It is the height of hypocrisy that the Internet Archive is choosing this moment – when lives, livelihoods and the economy are all in jeopardy – to make a cynical play to undermine copyright, and all the scientific, creative, and economic opportunity that it supports.”

Kahle’s announcement of the “National Emergency Library” was published on March 24.

Brewster Kahle

“To address our unprecedented global and immediate need for access to reading and research materials, as of today, March 24, 2020, the Internet Archive will suspend waitlists for the 1.4 million (and growing) books in our lending library by creating a National Emergency Library to serve the nation’s displaced learners. This suspension will run through June 30, 2020, or the end of the US national emergency, whichever is later.

“During the waitlist suspension, users will be able to borrow books from the National Emergency Library without joining a waitlist, ensuring that students will have access to assigned readings and library materials that the Internet Archive has digitized for the remainder of the US academic calendar, and that people who cannot physically access their local libraries because of closure or self-quarantine can continue to read and thrive during this time of crisis, keeping themselves and others safe. …

“The library system, because of our national emergency, is coming to aid those that are forced to learn at home, ” said Brewster Kahle, Digital Librarian of the Internet Archive. “This was our dream for the original Internet coming to life: the Library at everyone’s fingertips.”

Predictive of what Tillis on the Senate subcomittee is writing now, Michael Cader, in a March 26 piece at Publishers Lunch, calls this the Internet Archive “granting itself emergency copyright powers for uncontrolled digital lending.”

What Kahle is calling a “waitlist suspension,” Cader and many others see as a suspension of law, which, as Tillis is writing, is not a power that rests in the hands of nonprofit organizations’ leaders.

“The Internet Archive,” Cader writes, “along with some participating libraries, invented what they call “controlled digital lending” in 2011, and the practice has been controversial among authors and publishers but unchallenged in court up until now.

“The idea was to digitize in copyright, out-of-print books from library shelves that are not available as ebooks, and lend them under the same one-copy-per-user-at-a-time principle that has been applied to authorized library lending of ebooks.”

The Authors Guild’s Takedown Campaign

Once more, the Authors Guild has stepped forcefully into the debate under Mary Rasenberger and Douglas Preston’s leadership, respectively the 10,000-member organization’s executive director and president. In their first call-out to the organization’s membership on March 27, the Guild’s leadership writes:

“The Authors Guild is appalled by the Internet Archive’s announcement that it is now making millions of in-copyright books freely available online without restriction on its Open Library site under the guise of a National Emergency Library.

“The Internet Archive has no rights whatsoever to these books, much less to give them away indiscriminately without consent of the publisher or author.

“We are shocked that the Internet Archive would use the Covid-19 epidemic as an excuse to push copyright law further out to the edges, and in doing so, harm authors, many of whom are already struggling. …

“Last year, the Authors Guild and authors sent hundreds of takedown notices to the Internet Archive and protested the inclusion of their books in the Open Library program. Now, during this pandemic that has severely disrupted authors’ lives and choked the publishing industry, the Internet Archive once again is undermining authors’ ability to make a living and decide who gets access to their copywritten material.”

The Guild also points to what it sees as genuine cynicism in Kahle and the Archive’s leverage of the coronavirus COVID-19 emergency, writing, “Publishers, authors, bookstore owners, and readers have been coming together in magnificent ways these last few weeks to support this fragile industry, so much of which relies on razor-thin margins.

“Bookstores are closing, forced to lay off staff, small publishers are already hurting so badly that some fear going under if the shutdown lasts too long.

“Everyone is working to support one another and especially the bookstores, so vital to our literary culture. But rather than supporting authors and book publishing, the Internet Archive is undermining it when the industry faces a crisis of epic proportions. Appalling indeed.”

And in a follow-up, the Guild has mobilized, its legal team under Rasenberger’s direction sending a letter to the Internet Archive–you can read it here–calling on Brewster “to immediately cease the uncontrolled digital lending.”

And the Guild is instructing authors to “Tell Internet Archive to Remove Your Books From the So-Called National Emergency Library.” That article includes step-by-step instructions and a form takedown notice for authors on issuing take-down demands both directly and through their publishers.

As Rasenberger and her team write:

Mary Rasenberger

“Many of you asked what you can do.

“You can start by sending the owners of Internet Archive a strong, collective message that displaying and distributing full-text copies of copyrighted books to the entire world without authorization is not OK.

“It is a flagrant violation of copyright law.

“It is piracy, pure and simple.

“There are already plenty of legitimate places for students and others to read ebooks for free—namely through their local and school libraries. And most bookstores are still open for business online.”

Perceptions of the Archive’s Actions: Friend or Foe?

There’s a quietly confusing issue at the center of this controversy, one that’s plagued the discussion as long as Kahle and the Archive have pursued the “controlled digital lending” mechanism.

As The New York Times’ Alexandra Alter pointed out in her piece on March 30, the issue seemed to capture the gratitude of some who–perhaps siezed by the contagion’s demand for humanitstic generosity–initially interpreted Kahle’s “National Emergency Library” as a good thing.

“The Internet Archive’s ‘National Emergency Library’ is not a library. It is a book-piracy Web site.”Douglas Preston, Authors Guild

“After NPR and The New Yorker ran reports praising the National Emergency Library (the headline over the historian Jill Lepore’s essay in The New Yorker called it “a gift to readers everywhere”),” Alter wrote, “several prominent writers, including Colson Whitehead, took to social media to condemn the project.”

What Alter is getting at is that the Internet Archive is considered a positive, healthy nonprofit entity by so many people. For years during the last decade, it was the site of Peter Brantley’s “Books in Browsers” conference series, at the time a highly valued focus on the digital dynamic’s implications in storytelling and the book business.

But no professional in any of the creative industries, of course, can condone un-permissioned exploitation of copyrighted content.

And there’s the confusion: The “National Emergency Library” use of copyrighted content without rights holders’ permission seems to have struck most publishing people as completely wrong for what normally would be seen as a benevolent operation. It appears, they say, to be illegal. It definitely is unseemly.

Is Kahle, then, observers may wonder, a friend or a foe?

Perhaps in response to the blowback, the Archive put up a long blog post on March 30, an attempt to justify its “National Emergency Library” move. It draws a picture of the occasional disconnect between some members of an educational regime and those whose legal rights control the use of copyrighted content. “We’ve received dozens of messages of thanks from teachers and school librarians,” the Archive writes, “who can now help their students access books while their schools, school libraries, and public libraries are closed.”

Do those “teachers and school librarians” know that the publishing industry is assailing the Archive for what they see as a wrongful use of those books?

Look at these two coronavirus-response stories Publishing Perspectives has published, in which you see proper handling of special copyright arrangements to support the uses needed in the pandemic by teachers and librarians:

“We’ve received dozens of messages of thanks from teachers and school librarians who can now help their students access books while their schools, school libraries, and public libraries are closed.”Internet Archive blog post

These are the kinds of completely legal and appropriately formalized voluntary permissions that Sen. Tillis congratulates in his letter to Kahle. And yet, the Internet Archive doesn’t seem to have sought a similar permission from anyone for its adventures in “controlled digital lending.”

This finally may be about to catch up with Kahle and his associates.

In the Archive’s justification piece, it asks itself, “Does CDL [‘controlled digital lending’] violate federal law? What about appellate rulings?”

Kahle’s blog post answers: “No, and many copyright experts agree. CDL relies on a set of careful controls that are designed to mimic the traditional lending model of libraries.” Its quotation from the “white paper” generally put forward by proponents of “controlled digital lending” says that the practice falls under fair use and the first-use doctrine permit it.

The hue and cry of surrounding the “National Emergency Library” indicate that that position may soon be challenged.

The Guild’s Preston:  ‘Within the Bounds of the Law’

A searing op-ed piece–with a fine graphic by Michael George Haddad–was run by The New York Times on Monday (April 6) from Preston, the author and current Guild president. Preston clearly had done some homework.

First Preston lays out the Guild’s position that “The National Emergency Library is not a library. It is a book-piracy Web site. ”

He goes on to write that the “Internet Archive has not paid a dime for these books, to either authors or publishers; instead, it acquires donations of used books from various sources. After scanning, it stores those books in warehouses, claiming that its ownership of the physical book gives it the legal right to lend out digital copies.”

And then, Preston goes on to signal a need for the attention of Archive-funding foundations–which can ill afford to be tied to a questionable handling of intellectual property.

In addition to Kahle’s own Kahley/Austin Foundation, which Preston writes has “an endowment of over $100 million,” he asserts:

Douglas Preston

“According to Internet Archive’s legal filings, it also receives major financial support from other foundations, including the Andrew W. Mellon Foundation and the National Science Foundation.

“And the higher-ups at Internet Archive appear to be paid very well indeed: Its 2017 nonprofit 990 tax filing, posted at ProPublica, indicates that the top six employees collectively earn over $1 million a year.

“The Authors Guild’s 2018 survey of its membership and members of other writers organizations found that the median income of those who identified as a full-time author in the United States was $20,300, well below the federal poverty line for a family of three or more.

Is a Reckoning Ahead?

It seems likely that once the unquestionable priority of the national public health crisis has passed, either a court case or a congressional investigation–or both–may follow, to test what the Internet Archive is doing in its “controlled digital lending” activities, most recently dubbed the National Emergency Library.

The congressional option may be in the offing already, in light of the new letter to Kahle from Sen. Tillis on behalf of the intellectual property subcommittee he chairs.

From that letter:

“The subcommittee has jurisdiction over our nation’s intellectual property laws, including copyright law. As you may know, in February my subcommittee began a year-long review of the Digital Millennium Copyright Act with an eye toward reforming it for the 21st century.

Sen. Thom Tillis, R-NC

“I recognize the essential nature of books and publishing efforts during these challenging times. As schools, libraries, and bookstores have closed their physical locations across the nation, continued access to books is important to ensure that students and teachers have the materials they need for remote learning. It is also important that the general public has access to various types of books and written materials.

“I have been encouraged to see authors, publishers, and other copyright owners ease these struggles of students, parents, educators, and the general public. Among other efforts, they are providing valuable content and online courses for free, providing flexible licenses for distance learning and enjoyment, and extending access to audiobooks and e books. These voluntary efforts should be commended, not only because they are expanding access to copyrighted works, but also because they do not violate copyright law or harm creators. On the contrary, these times have shown the critical value of copyrighted works to the public interest.

“As you can see, I deeply value access to copyrighted works, but that access must be provided within the bounds of the law—even during a national emergency. 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. 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.

“As I am sure you are aware, many authors and publishers are struggling during this pandemic. Just this past Monday, the president of the Authors Guild noted in The New York Times that: ‘Authors have been hit hard by the pandemic. … It could be a career-destroying time for some authors, many of whom are struggling to make a living.’

“At some point when the global pandemic is behind us, 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. “

Update: On Friday (April 10), the weekly Copyright Clearance Center “Beyond the Book” podcast includes commentary from Publishers Weekly’s Andrew Albanese on this issue and the arrival of Sen. Tillis’ letter.


More from Publishing Perspectives on copyright is here, more on ‘controlled digital lending’ is here, more on the Internet Archive is here, and more on the coronavirus pandemic is here.

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About the Author

Porter Anderson

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Porter Anderson has been named International Trade Press Journalist of the Year in London Book Fair's 2019 International Excellence Awards. He is Editor-in-Chief of Publishing Perspectives. He co-founded The Hot Sheet, a newsletter for trade and indie authors, which now is owned and operated by Jane Friedman. He formerly was Associate Editor for The FutureBook at London's The Bookseller. Anderson also has worked as a senior producer, editor, and anchor with CNN.com, CNN International, and CNN USA, and as an arts critic (National Critics Institute) with The Village Voice and Dallas Times Herald.

Comments

  1. Congratulations! Thanks to Senator Thom Tillis we are FINALLY protecting intellectual property!
    Student debt has topped $1.5 Trillion in the United States.
    And you think intellectual property should be free, open and trafficked…?
    Think again!

  2. With all due respect to my erstwhile colleagues at the AAP (on whose copyright committee I served for 45 years) I can’t help wondering if this is not all just a tempest in a teapot. My understanding is that the vast majority, perhaps all, of the books in the Internet Archive were published in the 20th century and are now out of print. Hence they are NOT producing any income for their authors, so why is the Guild so upset? No one is depriving their members of any revenue as far as I can tell. Indeed, a great many if these books are probably legitimately regarded as “orphan works,” essentially abandoned by their copyright owners (if we even know who the current owners are). So I don’t get what all the fuss is about. Bookstores are not losing any sales because of what the NEL is doing; they do not, by definition, stock out of print books. Efforts were made years ago to get “orphan works” legislation passed by Congress, and as I recall, a bill did get House approval at one point but died in that Congress. So the proper response to the challenge of NEL is for copyright owners and their representatives to get their act together and get orphan works legislation passed to make what the Archive is doing fully legal. It may even be legal now because, unlike Senator Tillis apparently, I think Section 107 is still part of the law and interpretations of “fair use” can get very creative, as we saw with the use and abuse of the notion of “transformative use,” the abuse of which has done far more damage to copyright owners than anything Brewster Kahle has done. A version of that argument about transformative use, after all, got Google off the hook from the suit brought against it for the Google Library Project, which far and away was more of a threat than the NEL. So, calm down, people: intellectual property is not being threatened by the NEL. The Ninth Circuit has been known to make public policy in the guise of judicial interpretation, and it might well end up doing so again if the IP crowed pushes for a suit in that circuit. The existential threat of NEL is not worth the price of spending a ton of legal fees. The NEL is a gnat, not an elephant. It should be dealt with accordingly, not with an army of lawyers.

  3. To what I just said I would add this reminder to the anti-NEL folks: Article 1 of our Constitution explains the purpose of copyright law as being “to promote the progress of science and the useful arts.” It does NOT say anything about authors having any inherent moral rights in their creations. The rationale is purely pragmatic and economic in nature. It provides incentives for authors to create by allowing for a limited period of protection. It strikes me that the NEL is entirely within the spirit of Article 1’s justification for copyright. It is providing a valuable public service at a time of special need, and it is doing so in a manner that poses no harm whatsoever to any existing or potential markets. That is a key consideration because Factor 4 of Section 107, often regarded as the most important of the four factors, is based on just such a threat, which is nonexistent here. Furthermore, NEL is operating with no prospect of commercial gain, thus taking Factor 1 off the table. (When I testified before a Senate subcommittee in 1973, I urged on behalf of the AAUP, now AUP, that Factor 4 be elevated to the principal position under Section 107, with all other factors being made subsidiary.) The Authors Guild has no similar Constitutional leg to stand on because no incentives for new creation are being undermined, and no markets being threatened (because there is no public lending right in the US either). It and the AAP should carefully consider what their chances are of prevailing in any legal suit against IA if it ends up being an argument about the Constitutional basis of copyright.

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