Update: The Internet Archive has discontinued uncontrolled lending. DR

A few days ago, the Internet Archive announced a change to its Open Library ebook lending program. Until the announcement, this program had worked by treating treating ebooks as substitutes for the paper books the Archive held, and only lending out one electronic copy for each paper copy it had on hand—a practice called Controlled Digital Lending.

During the coronavirus epidemic crisis, however, the Archive announced it would suspend this limitation. Under the new terms, each user can check out up to ten ebooks at a time, but there is no limitation on how many copies of each ebook can be checked out at once by different users. Calling this the “National Emergency Library,” the Archive explained it was meant to benefit students and the general public during this time of crisis.

This announcement came in for a good amount of uncritical news coverage from sources like Forbes and NPR. However, is this really as praiseworthy as it seems? Ars Technica pays a little more attention to the issues in its own story, pointing out much the same thing that I did several years ago: this “ebook lending library” is cheerfully violating copyrights left and right.

Some publishers and authors are encouraging greater fair use of their works during the corona crisis, but the Internet Archive’s actions here are considerably more extreme. While it might have given a nod to the idea of fair use by only lending one ebook at a time for each paper copy it owns, there is no precedent for fair use rights to permit controlled digital lending of copyrighted content—and the Archive has now discarded even that fig leaf with its new temporary “borrow as much as you want” regime.

Just over two years ago, the Authors Guild finally noticed what was going on and issued warnings and complaints, but didn’t take any further legal action. It has now issued another announcement, viewing this new development with alarm.

IA is using a global crisis to advance a copyright ideology that violates current federal law and hurts most authors. It has misrepresented the nature and legality of the project through a deceptive publicity campaign. Despite giving off the impression that it is expanding access to older and public domain books, a large proportion of the books on Open Library are in fact recent in-copyright books that publishers and authors rely on for critical revenue. Acting as a piracy site—of which there already are too many—the Internet Archive tramples on authors’ rights by giving away their books to the world.

In its National Emergency Library FAQ list, the Archive provides a contact email for authors or publishers to request that their books be removed. It does not address the question of legality. As I noted in my previous piece, Internet Archive founder Brewster Kahle is a long-time copyright reform advocate, and one of the ways such people push for reform is by staking out a position just outside what the law permits and trying to push as far forward as they can.

The odd thing is that in all this time, nobody has yet filed any copyright lawsuits over it. Even the Authors Guild hasn’t gone to court despite knowing about what the IA was doing for at least two years now—and this is the same organization that was so incensed over Google daring to scan copyrighted books for search indexing purposes that it took Google and its partner university all the way to the Supreme Court (and ultimately lost both cases).

But lawsuits do cost a lot of money, and the Authors Guild’s legal fees in the Google dispute couldn’t have been cheap. Is the Authors Guild still stinging over those defeats? Does it think that if it lost a fair use case against a commercial entity like Google, it would have even less hope of prevailing over a nonprofit like the Internet Archive? Or maybe it’s just that there are more pressing matters for the courts right now than copyright lawsuits.

In any case, as The Digital Reader points out, plenty of authors aren’t happy that the Internet Archive is providing access to their works for free when they are being hit hard by the epidemic right along with everybody else. There are many other legitimate methods of obtaining ebooks for free, via library-related services like Overdrive and Hoopla Digital, that will earn the authors and publishers money.

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