net.wars

The Internet has made many aspects of intellectual property contentious at the best of times. In this global public health emergency, it seems inarguable that some of them should be set aside. Who can seriously object to copying ventilator parts so they can be used to save lives in this crisis? Similarly, if there were ever a moment for scientific journals to open up access to all paywalled research on coronaviruses to aid scientists all over the world, this is it.

But what about book authors, the vast majority of whom make only modest sums from their writing? This week, National Public Radio set off a Twitter storm when it highlighted the Internet Archive's "National Emergency Library". On Twitter, authors demanded to know why NPR was promoting a "pirate site". One wrote, "They stole [my book]." Another called it "Flagrant and wilful stealing." Some didn't mind: "Thrilled there's 15 of my books"; Longtime open access campaigner Cory Doctorow endorsed it.

The background: the Internet Archive's Open Library originally launched in 2006 with a plan to give every page of every book its own URL. Early last year, public conflict over the project built enough for net.wars to notice, when dozens of authors', creators', and publishers' organizations accused the site of mass copyright violation and demanded it cease distributing copyrighted works without permission.

The Internet Archive finds self-justification in a novel argument: that because the state of California has accepted it as a library it can buy and scan books and "lend" the digital copies without requiring explicit permission. On this basis, the Archive offers anyone two weeks to read any of the 1.4 million copyrighted books in its collection either online as images or downloaded as copy-protected Adobe Digital Editions. Meanwhile, the book is unavailable to others, who wait on a list, as in a physical library. The Archive's white paper by lawyers David Hansen and Kyle K. Courtney argues that this "controlled digital lending" is legal.

Enter the coronavirus,. On the basis that the emergency has removed access to library books from both school kids and adults for teaching, research, scholarship, and "intellectual stimulation", the Archive is dropping the controls - "suspending waitlists" - and is presenting those 1.4 million books as the globally accessible National Emergency Library. "An opportunistic attack", the Association of American Publishers calls it.

The anger directed at the Archive has led it to revise its FAQ (Google Doc) and publish a blog posting. In both it explains that you can still only "borrow" a book for 14 days, but no waitlists means others can, too, and you can renew immediately if you want more time. The change will last until June 30, 2020 or the end of the US national emergency, whichever is later. It claims support "from across the library and educational communities". According to the FAQ, the collection includes very few current textbooks; the collection is primarily ordinary books published between 1922 and the early 2000s.

The Archive still justifies all this as "fair use" by saying it's what libraries do: buy (or accept as donations) and lend books. Outside the US, however, library lending pays authors a small but real royalty on those loans, payments the Archive ignores. For the National Writers Union, Edward Hasbrouck objects strenuously: besides not paying authors or publishers, the Archive takes no account of whether the works are still in print or available elsewhere in authorized digital editions. Authors who have updated digital editions specifically for the current crisis have no way to annotate the holdings to redirect people. Authors *can* opt out -but opt-out is the opposite of how copyright law works. " Do librarians and archivists really want to kick authors while our incomes are down?" he asks, pointing to the NWU's 2019 explanation of why CDL is a harmful divergence from traditional library lending. Instead, he suggests that public funds should be spent to purchase or license the books for public use.

Other objectors make similar points: many authors make very little in the first place; authors with new books, the result of years of work, are seeing promotional tours and paid speaking engagements collapse. Others' books are being delayed or canceled. Everyone else involved in the project is being paid - just not the people who created the works in the first place.

At the New Yorker, writer Jill Lepore again cites Courtney, who argues that in exigent circumstances libraries have "superpowers" that allows them to grant exceptional access "for research, scholarship, and study". This certainly seems a reason for libraries of scientific journal articles, like JSTOR, to open up their archives. But is the Archive's collection comparable?

Overall, it seems to me there are two separate issues. The first is the service itself - the unique legal claim, the service's poor image quality and typo-ridden uncorrected ebooks, and the refusal to engage with creators and publishers. The second - that it's an emergency stop-gap - is more defensible; no one expected the abrupt closure of libraries and schools. A digital service is ideally placed to fill the resulting gaps, and ensuring universal access to books should be part of our post-crisis efforts to rebuild with better resilience. For the first, however, the Internet Archive should engage with authors and publishers. The result could be a better service for all sides.

Illustrations: Books (Abhi Sharma via wikimedia

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.