After a week of intense criticism, the Internet Archive yesterday posted an FAQ in response to concerns raised over its National Emergency Library, claiming the effort has a basis in law, and reiterating that the program was undertaken in response to what IA officials see as a national crisis.
"On March 17, the American Library Association Executive Board took the extraordinary step to recommend that the nation’s libraries close in response to the COVID-19 outbreak. In doing so, for the first time in history, the entirety of the nation’s print collection housed in libraries is now unavailable, locked away indefinitely behind closed doors," reads a blog from the IA's Chris Freeland. Citing this "historic outage," Freeland explains that the IA decided to make its collection of 1.4 million books digitized books from its Open Library initiative available without a waitlist.
In the blog, Freeland writes that the IA also "anticipated" condemnation from the Authors Guild and the Association of American Publishers, and that the FAQ was released to counter "falsehoods that are being spread widely online" about the program.
The FAQ is not likely to satisfy many critics, however. Rather, its broad approach highlights a feeling individual authors and publishers have expressed: that they are being dragged into a long-simmering copyright dispute during a time of national crisis and grave economic uncertainty.
Among the FAQ's key points: the IA insists that its practice of scanning and lendng books, called Controlled Digital Lending (CDL) is legal, citing a 2018 White Paper on Controlled Digital Lending of Library Books.
Under CDL, a library (or a nonprofit, like the Internet Archive's Open Library) scans a print copy of a book they have legally acquired, then makes the scan available to be borrowed in lieu of the print book, using a DRM-protected one user/one copy model, and, crucially, taking the corresponding print book out of circulation while the digital copy is on loan.
But, opponents say, the practice of CDL is not settled law or even widely accepted in practice. In 2018 the AAP, Authors Guild, and the National Writers Union, and dozens of other groups around the world insisted that the practice of CDL is illegal.
Further, the IA states that the National Emergency Library is not Controlled Digital Lending, because the Internet Archive has suspended waitlists temporarily in response to the Covid-19 crisis and subsequent library closures around the country. What's still not adequately explained, however, good intentions notwithstanding, is why the IA believes it can grant itself a sort of copyright holiday during the crisis.
In one section of the FAQ, the IA rightly points out that the scans are hardly commercial competitors for real e-books. "The experience is inferior to what you’ve become accustomed to with Kindle devices.” the FAQ explains. "We are making an accessible facsimile of the printed book available to users, not a high quality EPUB like you would find with a modern e-book.” It's true, the Open Library scans are difficult to read on a phone, for example, and offer none of the functionality consumers today expect from e-books.
But whether the Open Library scans are commercial competitors isn’t really the point for publishers told PW. There are rights involved, and the IA’s initiative has meant that publishers and authors are having to spend time researching rights, and opting out, if they so choose.
“It’s really the last damn thing anyone has time to deal with right now,” one university press publisher told PW, “and yet there’s a 'genie out of the bottle' quality to what the [IA] has done."
The FAQ is also unclear when the program will actually end. While June 30 is the date targeted, the FAQ says the National Digital Library will end on June 30, 2020, "or the end of the US national emergency, whichever is later." After that, "the waitlists will be reimplemented, thus limiting the number of borrowable copies to those physical books owned and not being lent."
But, what if the crisis ends earlier than June 30? Although that seems unlikely at this point, if libraries and schools reopen in May, what is the justification for continuing the program?
The full FAQ is here.
