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

From Publishing Perspectives:

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.”

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“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.

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“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.”

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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.

“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.

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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?

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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.

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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.

Link to the rest at Publishing Perspectives