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Internet Archive Defends Massive Online ‘Emergency Library’

April 13, 2020, 7:36 PM

The Internet Archive, a digital library that offers free checkouts, is defending the expansion of access to its 1.4 million-book collection, claiming fair use while public libraries are paralyzed by the coronavirus shutdown.

In late March, the nonprofit organization started its “National Emergency Library” initiative, suspending waitlists for in-copyright materials until June 30 or the end of the national emergency, whichever is later.

“The National Emergency Library was developed to address a temporary and significant need in our communities—for the first time in our nation’s history, the entire physical library system is offline and unavailable,” the nonprofit organization wrote in an April 10 letter to Sen. Thom Tillis (R-N.C.), responding to criticism from the lawmaker and authors over the change.

The conflict raises the question of whether or how a sudden mass disruption of educational resources might influence a fair use analysis, which allows infringement in some circumstances.

The letter comes after Tillis, who chairs the Senate Judiciary Committee’s intellectual property panel, wrote two days earlier that he’s “deeply concerned” that the initiative is “operating outside the boundaries” of copyright law.

The Authors Guild, an advocacy group for writers, also issued a statement in late March that “IA has no rights whatsoever to these books, much less to give them away indiscriminately without consent of the publisher or author.” It said it’s “appalled” at Internet Archives acting as a “piracy website.”

But fair use, as codified in the Copyright Act, “provides flexibility to libraries and others to adjust to changing circumstances,” Internet Archive founder Brewster Kahle wrote in the letter. The Internet Archive is honoring author requests to be removed, while the scale of books currently being checked out is comparable to that of a 30,000-person town, Kahle added.

About 90 percent of books borrowed were only viewed for 30 minutes, suggesting research, fact checking or browsing similar to what would be done in public libraries, the letter added. The emergency library includes all the books from Phillips Academy Andover and Marygrove College, and much of Trent University’s collections, “along with over a million other books donated from other libraries,” according to the Internet Archive.

“Your constituents have paid for millions of books they currently cannot access,” Kahle wrote to Tillis. “Because those branches are now closed and their books are unavailable, the massive public investment paid for by tax-paying citizens is unavailable to the very people who funded it.”

Tillis said Monday in a statement that he’s still concerned about the “unilateral and sweeping nature” of the effort.

“Sen. Tillis hopes Mr. Kahle will reconsider his decision to re-write copyright law at the expense of authors, artists, and creators,” the statement said.

Fair Use

Fair use depends on an analysis considering the nature of the use of the work, nature of the copyrighted work, amount of the work used and effects on the copyright owner’s market.

Libraries generally don’t need to satisfy a fair use analysis for their free distribution of books because of the first-sale doctrine, which frees the purchaser of a work to use, lend, give, rent or sell it—but not copy it. Libraries also buy and lend e-books, but with limits on how many users can access them at once.

The Authors Guild accused the Internet Archive last month of “using a global crisis to advance a copyright ideology that violates current federal law and hurts most authors” who have been hit hard by the shutdown.

The Authors Guild previously opposed the Internet Archive’s Open Library, which before the emergency only let users check out scanned book copies one user at a time. It said the Internet Archives, “unlike a real library,” never bought or licensed its e-books.

The Authors Guild has been incorrect regarding fair use boundaries in the past, Kahle said in his letter to Tillis. His letter cited a pair of the Authors Guild’s lawsuits involving e-book systems created by Google. The U.S. Appeals Court for the Second Circuit affirmed lower court findings of fair use in both cases.

“Our focus is on helping students and teachers, and from the feedback we’ve received within just two weeks, the National Emergency Library is meeting a very real need in our educational community,” Kahle wrote.

To contact the reporter on this story: Kyle Jahner in Washington at kjahner@bloomberglaw.com

To contact the editors responsible for this story: Roger Yu at ryu@bloombeglaw.com; Keith Perine at kperine@bloomberglaw.com

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