Authors Protest Internet Archive Pirating Their Books

Authors have discovered that the Internet Archive has converted its lending library site into an out and out pirate site, and they are not happy,

For the past few years the Internet Archive has been operating a site called The Open Library. This site fills some of the role of a public library by lending scanned copies of print books.

The site existed in a quasi-legal state, protected by a legal opinion that kept it from being explicitly labeled a pirate site, but that legal fig leaf was stripped away this past week when The Open Library director Chris Freeland announced that the Internet Archive would now start “lending” ebooks without limits.

To address our unprecedented global and immediate need for access to reading and research materials, as of today, March 24, 2020, the Internet Archive will suspend waitlists for the 1.4 million (and growing) books in our lending library by creating a National Emergency Library to serve the nation’s displaced learners. This suspension will run through June 30, 2020, or the end of the US national emergency, whichever is later.

During the waitlist suspension, users will be able to borrow books from the National Emergency Library without joining a waitlist, ensuring that students will have access to assigned readings and library materials that the Internet Archive has digitized for the remainder of the US academic calendar, and that people who cannot physically access their local libraries because of closure or self-quarantine can continue to read and thrive during this time of crisis, keeping themselves and others safe.

What they are calling the National Emergency Library is really just The Open Library with a new name, and new legal issues.

The problem with this is that The Open Library’s only protection was an untested legal opinion called Controlled Digital Lending. Go read it and you will see that it says said that a library could lend one scanned copy of a print book for each copy they had in their archive. This is great – in principle – because it means libraries can preserve their copies of old and rare print books and instead lend digital copies.

Update:  The university library consortium HathiTrust just adopted CDL on a limited basis as a response to the current emergency. (It sounds like they’re not sure it’s legal.)

CDL is a great idea, in my opinion, because it helps solve the orphan works problem. I do not however agree with how the Internet Archive has latched on to it as a justification for lending books that are widely available in stores and libraries.

But that does not matter today. In removing waitlists, the Internet Archive is discarding CDL as a defense, and is lending far more copies of each book than they have the rights for.

Update: While the IA has not put forth a fair use argument, they have lined up a lot of librarians as supporters. (The fair use arguments cited at that link are nonspecific, or not relevant.)

No matter your opinion of CDL, this is piracy plain and simple, and authors aren’t having any part of it:

image by blmurch via Flickr

Nate Hoffelder

View posts by Nate Hoffelder
Nate Hoffelder is the founder and editor of The Digital Reader. He has been blogging about indie authors since 2010 while learning new tech skills weekly. He fixes author sites, and shares what he learns on The Digital Reader's blog. In his spare time, he fosters dogs for A Forever Home, a local rescue group.

22 Comments

  1. Harmon28 March, 2020

    I largely agree with the idea that this is piracy. I would suggest, though, that if authors or publishers do not make their books available for purchase, an Internet Archive copy should not be regarded as a pirated copy. Authors get copyright protection to promote distribution of books, not to withhold it. The IA is my last resort, when I can’t find a book for sale new, or when I own a paper copy but can’t find a digital copy.

    Reply
  2. Robert Nagle29 March, 2020

    First, Open Library seems to be a test case with lots of legal muscle supporting it. (see https://controlleddigitallending.org/whitepaper ) They want to be sued– that is the point. They welcome it in order to get a court to develop some principles about digitalization.

    Second, this last Covid-19 special release seems pretty flagrant. You can’t arbitrarily decide to offer unlimited copies of something (even for a short duration).

    Third, I think the law is on Archive.org side for works nearing the end of their copyright term which haven’t been digitalized and where library copies are digitalized. Copyright law allows an exception for that.

    But I am seeing on the Open Library site several books there which are still in print and even available for digital sale on Amazon.

    If Archive.org had limited their lending library to books which have been out of print for over 20 years and no digital copy were for sale, there might be a claim of legitimate public interest. Even with the recent Covid-19 release, you might (?) be able to claim a public safety justification here — the cost and labor involved of handling and sending physical books to distant libraries isn’t trivial. But you’re trampling over property rights of living authors like Stephen King, etc…

    The only argument I see this being a test case for is OPT IN vs. OPT OUT. And the Courts haven’t ruled favorably towards distributors which would burden copyright holders to opt out.

    As an aside, Archive.org’s content moderation isn’t very good. Even for many orphaned scans in the main collection, there are quite a number of scans which don’t belong there. But generally archive.org is a valuable source of orphaned scans which for one reason or another are not available through Google Books.

    I worry that a court order might shut down archive.org altogether. Also, I don’t want this nonprofit do be spending lots of money on legal representation to test a legal theory.

    Reply
  3. Barney29 March, 2020

    That’s my worry too. IA as a whole could be toast because of the mainstream attention the Open Library is getting. Up to now the site has been under the normie radar.

    Have any prominent authors (besides Cory Doctorow) been supporting this “emergency library”? Jill Lepore (who wrote the New Yorker article) doesn’t seem to be on Twitter, but apparently has no problem with her books being on the site.

    Reply
  4. Barry Marks29 March, 2020

    Sometimes doing a good deed is more important than following the rules. Back in the 1960s while in college I had a part time job delivering for a medical rental store. One day I was told to stop on my way back from a delivery to pick up a wheel chair. When I got there I found an elderly lady who was caring for 6 small grandkids all by herself. She had no legs and without that wheel chair she’d be helpless. It was rented and very old. She’d had it for 6 years but couldn’t make the current payment. I called my boss and he said bring it back. When I objected he said I’d be fired if I didn’t. So I promised I’d be back with something for her and I brought the wheel chair in. On my next delivery I put a new wheel chair on the truck and brought it to her.

    Yes I stole the wheel chair, plain and simple. If I’d been prosecuted I wouldn’t have had a chance. But I’ve never been sorry I did it. It’s the only time I can remember stealing anything as an adult and I’m quite proud of it.

    Maybe Open Library is pirating. Maybe not. I don’t pretend to know the ins and outs of it. But I’m glad they’re doing something helpful in this emergency. I donate to Internet Archive every year. I think I’ll give them a little extra this year.

    Barry

    Reply
    1. Nate Hoffelder29 March, 2020

      How is it a good deed?

      There are many many many free ebooks out there; why do these have to be illegally distributed?
      https://the-digital-reader.com/2020/03/29/library-of-congress-expands-its-collection-of-open-access-ebooks/

      Reply
  5. Edward Hasbrouck29 March, 2020

    Statement last week from the National Writers Union:

    https://nwu.org/internet-archive-removes-controls-on-lending-of-bootleg-e-books/

    Some of the reasons why authors haven’t sued are addressed in the FAQ put out almost a year ago by a coalition of writers, translators, photogrphers, illustrators, publishers, etc. from around the world:

    https://nwu.org/book-division/cdl/faq/#faq9

    “9.Has anyone sued the Internet Archive or libraries for CDL copying?

    “Not yet. Even simple copyright lawsuits must be brought in federal court, and often cost hundreds of thousands of dollars. A challenge to the Internet Archive could easily cost millions. The legal system favors entities with deep pockets over individuals. Universities have lawyers, including law professors, available on staff or pro bono to defend them, and have legal resources orders of magnitude greater than those of individual authors. Authors have to pay for our own lawyers, and can rarely afford to take even the most flagrant copyright thieves to court. Lack of lawsuits for copyright infringement against the Internet Archive or its partners in CDL should not be taken as acceptance of their legal claims or lack of outrage at their actions.”

    Reply
    1. Nate Hoffelder29 March, 2020

      hat is actually in my link post tomorrow

      Reply
  6. Blue Skies30 March, 2020

    I understand that people shouldn’t infringe on copyrights that working individuals are using and producing more all the time. I hate that people misuse the term piracy all the time anymore.
    They are not making money. They are not giving away free copies. It is lending only. It is in a situation where people would not otherwise spend money either. Many people are unemployed, stuck at home, etc. There is little to no money that would be lost as most people that have access will use their libraries. Higher quality reading materials. This is a public service in a time of crisis that if the “Author’s Guild” had any class at all. They would have came up with a better solution first, or at least propose a valid alternative if you think they are wrong. The whole point is libraries are overloaded online right now. Archive.org wanted to help and are loaning out books the already have access too. Not giving away as on other parts of archive.org as there are books available for download that are out of copyright. Not in the Open Library thought, which is the advertised item.
    The fact that people can be so selfish and lack caring or empathy is sad. We ALL should be coming together and helping each other in times like this.
    I don’t pretend to know legalities, just common sense. Not so common anymore.
    I also don’t advocate taking away from the content creators. Without them there would be no great works. I love books and support all I can. Authors if anyone should understand, context matters.

    Reply
    1. Nate Hoffelder30 March, 2020

      You seem to be unaware that there already were millions of free ebooks, including both titles in the public domain and works released for free by creators. In fact, the LOC is puling together a collection:
      https://the-digital-reader.com/2020/03/29/library-of-congress-expands-its-collection-of-open-access-ebooks/

      In short, whatever need there was for free content was already being filled, so the IA had no valid reason to go take more without permission.

      Reply
  7. Robert Nagle30 March, 2020

    Edward, I would not take that NWU claim at face value. Sure, many authors don’t have resources and there is a perception that Silicon Valley is awash with libertarian cash, but Internet Archive is a nonprofit being helped by many respected public endowments and universities (ie., not Koche or Scaife). On the other side, you have major authors (King, Rowling, etc) and their publishing backing, which have substantial cash and personnel to finance lawsuits. They have registered copyrights and are entitled to significant statutory damages if they prevail in court.

    I would propose an alternate explanation: 1)the law is murky and the legal foundation is at least defensible 2)marquee authors don’t view this as a significant threat to their IP and 3)publishers and authors value their relationship with libraries and don’t want to undermine this relationship.

    But this could change if OL gains more visibility.

    Reply
  8. Nate Downes30 March, 2020

    Per the release, it is the material from three libraries, which they are partners with. So far in my casual check, this does seem to be the case, with the full Open Library catalog not available. They also are partners with state and federal agencies which means that CDL combined with the Blackbeard decision could make IA’s move here fair use, with more legal standing than YouTube does. (I do hope this is not the case, mind you, but that is what appears to be the argument here) To call it piracy, however, taints the argument, and gets the extremists on both sides riled up needlessly.

    Reply
    1. Nate Hoffelder30 March, 2020

      I’ve heard from a lot of authors who found their books in the National Emergency Library. And I for one found Harry Potter in at least 5 different languages. Here:
      https://archive.org/details/nationalemergencylibrary?and%5B%5D=harry+potter&sin=

      Reply
    2. Nate Hoffelder30 March, 2020

      “To call it piracy, however, taints the argument, and gets the extremists on both sides riled up needlessly.”

      Except I have a solid argument for calling it a pirate site because CDL is an untested legal opinion. According to established copyright law and court rulings, The Open Library was a pirate site even when they were ending one copy at a time, and now that they have removed waitlists they are more of a pirate site than before.

      Reply
  9. Elle30 March, 2020

    Have to agree with previous commenters saying this is selfish of the authors and an exception should be made right now. While people are staying home out of necessity, losing valuable income and struggling to make ends meet, the last thing they’re going to prioritise is buying a book over food. A lot of people are struggling with quarantine and reading can provide a valuable respite from that. Not to mention the importance of building a regular reading habit, which many people don’t do but as a result of this current situation, may take up and hopefully stick to when life is back to “normal” – when this resource is closed and finds are such that they can afford to purchase books.

    You say libraries are an option, yet my library has not only an embarassingly limited selection of e-books but doesn’t work on Kindle. The most popular ereader is somehow not accommodated for, go figure! So while I’d like to make use of it, I can’t.

    You say there is an abundance of free ebooks online, as if any old book will do. Almost all free ebooks on Amazon are of horrendous quality, same for kobo and I’m sure whatever other retailers there are. Not everyone wants to read teenage vampire smut. Similarly, not everyone wants to read old classics (which is what you’re left with when you weed out the former), nor does everyone have the capacity to do so. Bear in mind readers vary not only in interests, but in age, background, reading ability, etc. Not all books are equal, nor are all people the same.

    Your “solutions” neglect the importance of reading in a situation like this, and amount to either an elitist attitude of “if you won’t/can’t read the classics, don’t bother reading at all” or “a book is a book and a rubbish book is better than no book”, neither of which are correct. People read because they enjoy the book, not for the sake of reading itself. We are not going to torture ourselves just because something is free (and being forced to do so doesn’t do the author any favours either), but if we enjoy the book, we are likely to spend real money on that author in future especially if they’ve shown the capacity to sympathise and help for the good of the bigger picture (mental health, healthy reading habits, etc above the weight of their pockets) by providing a way of accessing their works.

    Almost everyone is losing money right now, but seeing as we’re all stuck inside, book purchases will likely increase despite this resource. Although that is besides the point. For authors to wine over protecting their income right now when thousands of hard working individuals are struggling to make ends meet is disgusting. There are plenty options for them if they don’t like IA, but instead of doing something useful and providing free temporary access to at least some of their works under their own terms, they chose to complain and risk losing the respect (and business) of fans.

    Reply
    1. Nate Hoffelder30 March, 2020

      “While people are staying home out of necessity, losing valuable income and struggling to make ends meet”

      Dude, you just described authors (you know, the people you want to steal from).

      Internet leftie, 2020 edition: Wanting to be paid for your labor is selfish

      Reply
  10. Nate Downes30 March, 2020

    If an author’s material is available when it should not be, the IA has a support system to fix this. I helped two authors so far get in touch with them. They can be reached at [email protected]

    And thank you again Nate for being so thorough on covering this. It has helped me better shape my opinion on it.

    Reply
    1. Nate Hoffelder31 March, 2020

      Oh! I hadn’t seen that yet, thanks!

      Reply
  11. […] week the IA picked a fight with authors when it announced that it was going to loan copies of the scanned books in its National Emergency […]

    Reply
  12. […] CDL as a defense, and is lending far more copies of each book than they have the rights for,” The Digital Reader explains. Internet Archive has made sure you’d be able to read anything in their archive without the […]

    Reply
  13. […] unlicensed copies of scanned books. It had been distributing the pirated works without limit since late March 2020 via the National Emergency Library, and they had been distributing in a more limited form since […]

    Reply

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