Strap yourselves in, kiddos — we’re going to talk about one of the recent travesties to come out of the coronavirus pandemic; one that hurts the literary community in a substantial way. Now I’m not a lawyer, but I’m a creator, and the onus is on creators to familiarize themselves with the laws that are meant to protect them, so I want you to keep that in mind that I’ve studied this stuff in grad school and because it affects my way of life, but I can’t argue any of this in a court of law. But I will discuss copyright, Fair Use, and how authors make their living…and break apart all the arguments that the offender makes to justify their illegal behavior.
Yes, this is a rage post — consider yourself warned!
The Internet Archive’s National Emergency Library
On March 24, the Internet Archive announced the creation of a “National Emergency Library” featuring 1.4 million books that have been scanned and uploaded for public consumption, and it’s all free — “this means that multiple readers can access a digital book simultaneously.” Sounds like you’ve hit the jackpot, right? Except you’re dealing with stolen goods by pirates who raise the flag of “goodwill” as justification for their widespread theft.
We’ve covered stolen and torrented books on Speculative Chic before, with Casey‘s excellent article “Piracy Stinks, Or Why You Shouldn’t Steal Books.” I highly recommend you read it to see some of the real-life consequences that come from stealing from authors (with examples of writers like Maggie Stiefvater and Seanan McGuire).
Internet Archive’s modus operandi is far more damaging than readers simply torrenting books, because it makes acquiring titles to read very easy and guilt-free for its users — they call it a library, and checking out books is not illegal. Except…you can’t really call what you’re checking out here books or even eBooks. You’re checking out scans. The Internet Archive secures a physical copy of a book, then scans each page and uploads a digital image, and that compendium of images is what you’re borrowing from them in order to read. It also allows anyone else from the public to upload documents onto the site. As Sara Nicolas writes for Book Riot, “I just signed up with my throwaway gmail address and I was able to start the process within 15 seconds. Full disclosure: I did not complete it because I didn’t want to upload anything for this site.”
This is no different than music piracy or scanlation and Internet Archive fails to see this. They justify the scanning of their books as thus: “The books in the National Emergency Library have been acquired through purchase or donation, just like a traditional library. The Internet Archive preserves and digitizes the books it owns and makes those scans available for users to borrow online […]” This is no different than someone buying a CD of an album, ripping the audio to generate a digital file, and then uploading those files on the web for free access. We’ve seen over the decades what has happened to the people who stole music — so why does Internet Archive think it can get away with distributing books in their Emergency Library in the same way?
The Internet Archive Claims CDL and Fair Use as a Defense
On Internet Archive’s written response to the accusations they’ve received, they explain that during “normal times,” they utilize the practice of “controlled digital lending” and describes it as a “a lend-like-print system where the library loans out a digital version of a book it owns to one reader at a time, using the same technical protections that publishers use to prevent further redistribution.” They claim that CDL is not illegal and governed by the Fair Use doctrine.
Here’s the thing about Fair Use: Fair Use is not a law. It is an argument.
To pull from a popular article I wrote on fanworks and copyright,
- Copyright violators do not determine if their work falls under the protection of Fair Use; that decision is made through arbitration.
- Fair Use is not a right. Fair Use is a defense argument used in legal proceedings, and is a circumstantial provision that does not guarantee protection for those who violate copyright law.
This means that the Internet Archive is not the body that can decide the legality of Fair Use and CDL, yet they do so on their website anyway.
I pulled up the Controlled Digital Lending Position Statement — coauthored by counsel for the Internet Archive — for a closer look. CDL argues that its system has a legal base because of the “First Sale and the Common Law Exhaustion Principle” and again, “Fair Use.”
The position statement explains the The First Sale principle as a “legal set of rules mandates that any time there is an authorized transfer of a copy of a copyrighted work, the rights holder’s power to control the use and distribution of that copy is terminated or ‘exhausted.’ Exhaustion allows the owner of a particular copy of a work to sell, lend, or give away that copy without payment to or permission from the rights holder.” The First Sale principle is used to justify the existence of secondhand booksellers or vendors, or any general person who wishes to resell with a similar function (which the Supreme Court upholds). When you buy books secondhand, you are not doing anything illegal at all — just know that due to the First Sale/Exhaustion principle, your author no longer gets paid for that book (this is why buying the books brand new or to getting them from the local library is ideal — authors get compensated from these venues).
Internet Archive claims that when they purchase a book or someone donates a book to them, that counts as a First Sale, and therefore that transfer — from consumer to Internet Archive — exhausts the rights holder’s claim on it, and this is why they have operated this model for the duration of the archive’s existence. Except, “in removing waitlists, the Internet Archive is discarding CDL as a defense, and is lending far more copies of each book than they have the rights for,” The Digital Reader explains. 
Internet Archive has made sure you’d be able to read anything in their archive without the wait “through June 30, 2020, or the end of the US national emergency,” as their blog states. This language allows them to frame it as a potentially indefinite period of unfettered access. And while this coincides with the time period in the US, the Internet Archive says in its FAQ document, “our digital library is free to read for anyone with an internet connection, anywhere in the world,” so that means the spread of this piracy is global.
As far as Fair Use goes, the CDL site claims it as “a First Amendment ‘safety valve’ that protects free speech from encroachment by copyright holders” (and that take is certainly questionable in this particular situation), and they list four “nonexclusive factors” used as determinants of Fair Use, which I paraphrase here (you can also read this article that explains the factors well in context of a library’s use):
- The nature and purpose of use of a copyrighted work (Why and how are you using this protected material?)
- The nature of the original copyrighted work (Why was this original work made, how is it used, and what does it consist of?)
- The amount and substance of the copyrighted material used (Is it an excerpt? An entire work? For what purpose?)
- The effect on the market value — potential and actual — of a copyrighted work (Does this use harm or deprive the original of its value?)
CDL gives its reasons why this form of lending should be justified as Fair Use here; but this reasoning does not automatically apply to the Internet Archive’s justification of the National Emergency Library, because they’ve changed the rules by eliminating their waitlists. Their justification is that they can do this because we are no longer in normal times, and with the closure of physical libraries due to the pandemic, they have taking up the mantle of providing access. As author Priscilla Gilman tweeted, “Ugh. This is one of those well-meaning but misguided efforts that ends up harming those who need help.”
When it comes to Internet Archive making its own Fair Use argument via the four factors, I think it falls apart on points 3 and 4 but could find a way to get around points 1 and 2. Given that all of these factors are weighed together to determine if the use of copyrighted material is lawful, if an organization like the Authors Guild or the Association of American Publishers were to go into litigation to protect authors, I think they have a case. Internet Archive is uploading a work in its entirety rather than an excerpt, and they are hurting the market value for the copyrighted work. They are depriving authors of income.
While the Internet Archive encourages people to buy a work to support their author, realistically, if you have unfettered access to something for free, why would you pay for an exact copy of what you already have? (While Internet Archive institutes a 2-week checkout period for a book and claims access is suspended until you check out a book again, removing the waitlist ensures books can be simultaneously checked out in perpetuity during this period, basically making these limits pointless).
Again — do people buy things when they can get them for free? Generally, no. And the numbers show it — $315 million in losses in 2017, $300 million in 2019. This is the money that could’ve gone to the people who make the books you love. This is part of the reason why the median income for writers is $6,080.
Because Internet Archive is marketing itself as a goodwill provider in this time of crisis, there was and still is a lot of widespread support for this initiative, from librarians, newspaper outlets, and more (I personally thought it was an idea with good intentions gone horribly, horribly wrong). The Internet Archive has also appealed to the pro-piracy crowd who believe the organization is just another Robin Hood (see this vomit-inducing article‘s atrocious comments if you dare). But as The Authors Guild points out,
Internet Archive is using a global crisis to advance a copyright ideology that violates current federal law and hurts most authors. 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.
What happens when you deny creatives revenue? Let’s rephrase it this way: what happens when you deny a worker their paycheck?
When writers can’t afford to live, writers can’t afford to write — which means no more books.
The Internet Archive Makes One Concession to Angry Authors
The Internet Archive has written many counterpoint posts, updated its FAQs, released a public statement of support, accused its critics of claiming and spreading falsehoods … but has thrown writers a bone. They will allow authors to submit removal requests for their books to be pulled from the archive. In its March 30th post, the Internet Archive states that they offered “clear instructions” how to opt-out and that “Our takedowns are completed quickly and the submitter is notified via email.”
I can’t attest to the speediness of this happening, but in terms of ease, according to this FB post, you have to search for your book and list the URL where it is hosted, the caveat being there can be multiple URLs for the same book. Victoria Thompson, bestselling mystery author and fellow Seton Hill alumni, lamented that almost all of her books were on the site, and that the process “was a real pain.” Understandable when she’s got to check for 53 books and potential duplicate links to all of them!
The Authors Guild also came through with a far more detailed explanation of how to remove your work from the National Emergency Library (and it shows that Internet Archive’s process isn’t as easy as it seems). The post is also complete with a template for a cease-and-desist letter, and explains what type of work you can remove versus what you can’t (for example, “daisy copies”). They also advise of the actions they have taken as an organization to help combat the National Emergency Library, including bringing the matter up to members of Congress. You can read that all here.
How Can You Help?
Simply, don’t support sites that pirate or distribute works that don’t allow authors to be compensated. Avoid places that use “Fair Use” arguments like a bulletproof vest when the argument can be as tenuous as a gossamer veil. Even if the distributor can make a compelling case for what they’re doing, they don’t interpret or determine the law — the courts do. Which means you should go ahead and assume they are wrong and skirting the lines of legality. They’re basically crossing their fingers when they take the Fair use gamble.
The Authors Guild writes,
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.
The Internet Archive’s claim that the shuttering of libraries and lack of access to books during this pandemic creates the need for their National Emergency Library. They believe this is the way to access books we can’t otherwise… except you can still access your library even though its physical doors may be closed right now. You can still access bookstores even though you can’t set foot inside right now. You can also follow your favorite authors, your favorite publishers, and sites like Book Riot, Poets and Writers, and Publisher’s Weekly — all of these places are offering free books or links to providers of free books and free access during this trying time. The difference — these are willing participants who are choosing to make their work free in a capacity that does not harm them.
Writers are already hurting from the pandemic, just like everyone else is. If you want them to be able to keep writing, buy their books. And if you can’t buy them, then borrow them for free from your local library. It’s that simple, and the right thing to do.