November 24, 2020
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By Larissa Horton

Line O’Type Co-Editor in Chief

On March 24th of this year, the Internet Archive (IA)’s Open Library announced the beginning of its “National Emergency Library.” Until June 30th, the library, which typically only lends out any one book to one person at a time, would remove all limits on the number of people allowed to borrow an ebook from its collection at one time. This measure unsurprisingly disturbed publishers and authors, who protested that the degree of free access to their material that the Internet Archive provided qualified as copyright infringement. Hachette Book Group, HarperCollins, John Wiley & Sons, and Penguin Random House thus filed a lawsuit against the Archive, asking the non-profit for $150,000 per all 127 books the suit was filed over and arguing principally that the Archive’s approach would hurt their profits and authors’ livelihoods, especially in concert with the economic impact of COVID-19. In response, the IA ended the National Emergency Library 14 days early on June 16. This wasn’t the Archive’s first run-in with the law, either: Over the years, the non-profit has drawn the ire of many different organizations from the Nintendo Company to the government of India. Yet, despite the Internet Archive’s, at times, murky legal status, the archival purpose and services it provides are valuable and worth maintaining.

First, though, let me be clear: The temporary National Emergency Library (NEL) program almost certainly constitutes copyright infringement. With the Open Library’s lending system allowing one person per book, equivalent to the amount of physical copies owned by the Library, one could at least argue that it was similar to lending a physical copy; the NEL doesn’t have that defense. Emphasizing the utility of the NEL does not mean excusing any harm that might have come to authors because of it. It is relevant to consider, however, that the Copyright Term Extension Act of 1998 mandates that copyrighted works don’t enter the public domain until seventy years after their creators’ deaths, meaning many works’ copyright protections aren’t actually protecting an author’s right to her or his own work.

Returning to the NEL specifically, the program was established as a temporary measure during extraordinary circumstances: Just as authors were struggling with the growing impact of COVID-19, so too were students and others who needed access to books. Many brick-and-mortar libraries at the time were closed or had severely limited services in order to adapt to COVID-19, restricting the options of those who couldn’t afford to buy books. Also, according to statistics on NEL usage released by the Internet Archive within the program’s first two weeks, most NEL users only accessed the books they borrowed for around thirty minutes, approximately the amount of time someone might use to check a reference—many book citations on Wikipedia link to the Open Library—or browse a book they were interested in similarly to what one would do at a physical library. Additionally, almost all of the books offered by the IA’s library are over five years old, and most of them still are over ten years old; these aren’t the newest releases whose sales would be hurt the most by the NEL program. It’s fair to say: NEL users weren’t pirating whole, just-on-the-market books as some feared.

On the whole, though copyright is an important asset for authors protecting the rights to their work, it isn’t a perfect piece of legislation and its enforcement can interfere with legitimately helpful efforts to archive and spread information. Of course, the Internet Archive has faults of its own, but much of the fifty petabytes of data stored on its servers would have been lost to time without the Archive’s efforts, and the NEL lawsuit threatens that.

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