Internet Archives’ “National Emergency Library” Draws Criticism

On March 24, the Internet Archive, home to 1.4 million free digitized books, stirred up controversy when it launched the National Emergency Library (NEL) — a digital library that allows an unlimited number of people to download the same digital file. 

The NEL has drawn criticism from a growing number of organizations, including the Authors Guild and the Association of American Publishers. The groups argue that the emergency library has no copyright claim to offer free downloads of books since it hasn’t paid a license fee to do so. The end result, they argue, means authors will lose out on royalties for books that are “taken out” from NEL.

The Internet Archive, a self-described non-profit library of millions of free books, movies, software, music, websites, and more, announced NEL on March 24, “in response to the rolling wave of school and library closures that remain in place to date” as a result of COVID-19. For the NEL, the Internet Archive has suspended its waitlist for titles, meaning multiple readers can access a digital book simultaneously. The digital copy must be returned after two weeks. The waitlist will remain suspended through June 30, 2020, or the end of the national emergency, whichever is later.

In a New York Times opinion piece, Authors Guild President Doug Preston alleges that the Internet Archive is a book piracy website that, unlike other libraries that lend e-books, does not pay the same licensing fees for those e-books; a portion of these fees are used to pay authors royalties.

Preston writes 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.”

The Internet Archive’s NEL spurred a letter from North Carolina Senator Thom Tillis, chairman of the subcommittee on Intellectual Property, questioning the legality of the effort. “I recognize the essential nature of books and publishing efforts during these challenging times,” Tillis wrote and stressed that he valued access to copyrighted works, “but that access must be provided within the bounds of the law — even during a national emergency…. I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act.” He added that he was “concerned” that NEL was “operating outside the boundaries of the copyright law.”

In response, Brewster Kahle, founder and digital librarian of the Internet Archive, denied that his organization had violated any laws. Noting that schools and libraries have been closed in response to COVID-19, Kahle said the emergency library was created to fill the “temporary and significant need in our communities,” as reported by Law360. “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,” Kahle wrote. “As a result, libraries can and are meeting the needs of their patrons during this crisis in a variety of ways.”

The AAP, however, disagreed with the idea that NEL is lawful. “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,” said AAP President and CEO Maria Pallante in a statement. She noted it is the “height of hypocrisy” that the Internet Archive is choosing the COVID-19 pandemic to undermine copyright law and all of the scientific, creative, and economic opportunities that it supports.

The Authors Guild and the Independent Book Publishers Association have encouraged their members to join the “Tell Internet Archive to Remove Your Books from the So-Called National Emergency Library” campaign. Authors can find information here, and publishers can find information here.