Internet Archive Uses Pandemic to Justify Looting

When I borrow a sentiment from Ayn Rand, you can bet I gave the matter some serious thought. But looting is the one word that comes to mind in response to last week’s move by the Internet Archive to launch what they call the National Emergency Library. Believing the coronavirus pandemic provides both a moral and legal foundation for its decision, IA suddenly made over one million published works, including contemporary books in print, available to “borrow” worldwide. And not even on a one-reader-at-a-time basis like a library. They just opened the floodgates. 

This “emergency library” is neither moral nor legal nor even necessary to meet a need suddenly created by the pandemic. Yet what is most galling about the IA in this regard is the pretense to public service and largesse against the backdrop of a real emergency. One cannot be “generous” with the labor and property of others, particularly those who are, themselves, vulnerable to the economic hardship caused by crisis. That is the true spirit of looting.  

Most authors are barely insulated from financial difficulty in the best of times. Many writers you might imagine as quite well off, some who even have august words like Pulitzer next their names, are among those who (as the economic reporters describe) could not lay hands on $500 in an emergency. And now we are all in the midst of an emergency. It is of course too soon to predict what long-term results will follow the ebb of Covid-19, but it is certain that millions of people are suddenly out of work right now. And among those so affected are creative workers, who generally earn average to below-average incomes under normal circumstances.

The mean income for authors from writing alone is $20,300, and the supplemental work that many of them do may presently be foreclosed, as it is for millions of people in multiple business sectors. If anything, it would seem that this moment of forced solitude and inertia is the perfect time to promote buying (or legally borrowing) a few books, rather than infringing the copyrights on about 1.4 million. 

In practical terms, the coronavirus has not reduced online access to cheap or free books, but it did prompt several major publishers to address educational needs by making digital books and other resources freely available to schools and individual students. Hence, IA’s claim that its “emergency library” was launched, in part, to make works available for students is a dubious one at best. Instead, the move reeks of opportunism—a stunt to promote the misguided anti-copyright agenda of IA’s founder, Brewster Kahle. Moreover, it reeks of cynicism in a moment when tens of thousands of creative workers are suddenly unemployed.

Musical artists cannot play live venues. Theaters are shuttered. Motion picture and TV production is at a near standstill. Book authors cannot travel, host promotional events, or lecture. Photographers cannot travel or do shoots that involve human subjects or crew. And many journalists who are still able to work are risking their lives to do so. At the same time, members of the creative community have responded to recession and fear in positive and useful ways—donating money, streaming or broadcasting free living-room concerts, making first-run movies available online, streaming theater performances, hosting online art classes for children, and the list goes on.  

By contrast, it is very hard to see Internet Archive’s “emergency library” as anything other than anti-copyright evangelism. In part, this view is supported by the fact that the library was launched on such shaky legal ground, that only the milieu of a major crisis could obscure the organization’s flagrant disregard for authors. In its response last week, the Authors Guild wrote the following:

“IA has made far-fetched claims that it is protected by fair use, but an appellate court case last year squarely decided the issue against them, as we advised them it would. There is simply no basis in the law for scanning and making copies of entire books available to the public. Now, IA has gone further and stripped away the one-user-at-a-time limitation so that any number of readers can access any of 1.4 million books at any time through a couple clicks….”

There are multiple exceptions and carveouts in copyright law for libraries and archives, and there are historic precedents for national emergencies. But those exceptions have limits and conditions designed to balance public service with the authors’ right to earn revenue for their work through legal distribution systems. Specifically, the statutory carveouts do not even apply to archives like IA, which is presumably why they assert that the pandemic somehow allows them to make these books available under the doctrine of fair use. 

This unfounded legal theory is exemplary of the archive’s ideological opposition to copyright. Kahle & Co. are of course entitled to advocate any view they want, but to camouflage their agenda in the fog of a pandemic is unconscionable. More particularly, the Internet Archive should not be surprised if, after this emergency has passed, they find themselves on the losing end of a lawsuit. If for no other reason, it may be necessary to affirm that their appeal to “emergency powers” under fair use in this case is legally untenable.  

As I wrote once before, the Internet Archive can be a wonderful service when used within the constraints of legality. Having just finished writing a book myself, I will admit that my bibliography has at least a half-dozen citations to IA’s digitized books from the very early twentieth or mid-nineteenth century (i.e. in the public domain). Providing access to materials that are otherwise hard to find without a lot of time and expense is the best and highest purpose of a digital archive. Such repositories can be invaluable to authors who, as mentioned, have limited resources to invest in their research. But if, while providing a useful service, the same archive seeks to degrade the already tenuous market for books still under copyright, then the whole value proposition becomes a vicious cycle of self-destruction. Not unlike looting during an emergency. 

David Newhoff
David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

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